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SONDERDRUCK AUS: AUFSTIEG UND NIEDERGANG DER ROMISCHEN WELT GESCHICHTE UND KULTUR ROMS IM SPIEGEL DER NEUEREN FORSCHUNG HERAUSGEGEBEN VON HILDEGARD TEMPORINI , UND WOLFGANG HAASE I PRINCIPAT SECHZEHNTER BAND (3. TEILBAND) HERAUSGEGEBEN VON WOLFGANG HAASE Ww DE G WALTER DE GRUYTER : BERLIN - NEW YORK 1986 The Augural Law by J. Linpersxi, Chapel Hill, N.C. In memoriam Awna Kamiisixa-LInperskt obit 17. V, 1979 Quod erunt autem in his commentariis pauea quacdam scrupulosa et anxia.. . quodgue erunt item paucula remotiora super angurio iure ... non oportet ea de~ fugere quasi aut cognitn non utilia ant per- ceptu diffcilia (Gellius, Noctes Atticae, praef. 13). . Auspiciis angures praesunt ... . HL. The collegiwm angurso responsa IIL. "The singetli augures: their functions, prerogatives and obligations IV. The disciplina anguralis. .... . V. The books of the augurs . . . . VI. The ritual of inauguration: cemplum, auspicinm, augurium . . bees VIL. Bibliography eee eee ee ts functions, prerogatives and obligations, decreta and * A major portion of this work was written in 1977—1978 at the Institute for Advanced Study in Princeton, which provided a perfect setting for intellecwal endeavor. Grants from the John Simon Guggenheim Memorial Foundation and the National Endowment for the Humanities afforded the nervus rerum and made possible the hard leisure of writing. To all these Institutions I am deeply grateful for their generosity. At Princeton I enjoyed the friendly hospitality of several Members of the Institute. I must particularly thank Professor J. F, Gictiam for his friendly encouragement and unfailing advice. I am grateful to my Colleagues at the Institute, Professors Avert Camron, InvIN MERKER and especially Wituam V. Hlannus, whose share of the burden was the heaviest, for Kindly consenting to read parvs of this study. To Professor Anus Mrcuezs 1 am thankful for her erudite advice, and to Dr. Drzpra Keen for her unfailing help in the pruning of the text. THE AUGURAL LAW 2147 1. Auspiciis augures praesunt Modern scholars often present the axspicia and the ins augurale as part of the sacrwm and the sacral law.? The Romans, however, clearly distinguished be- tween the sacra and the awspicia. Cicero, de nat. deorum 3.5, puts into the mouth of the pontifex Cotta (cos. 75) the following statement: Cumgue omnis populi Romani religio in sacra et in auspicia divisa est, tertium adiunctum sit si quid praedictionis causa ex portentis et monstris Sibyllae interpretes haruspicesve monuerunt, harum ego religionum nullam Abbreviations: ANRW Aufstieg und Niedergang der rémischen Welt. Geschichte und Kultur Roms im Spiegel der neueren Forschung, ed. H. Tem porint, W. Haase, Berlin—New York 1972ff. Broucuron, MRR T. R. §. Broucnron, The Magistrates of the Roman Republic 1-2, New York 1951~1952. Catatano, Dititto augurale P. Caratano, Contributi allo studio del diritto augurale 1, Torino 1960, Catarano, Aspetti spaziali P. Caratano, Aspetti spaziali del sistema giuridico-religioso romano, in: ANRW II 16.1, ed. W. Haase, Berlin-New York 1978, 449-553. Monusen, Staatsrecht Ta. Monsen, Rémisches Staatsrecht 1.3 2.39 3, Leipzig 1887—1888. Peasi, Cic. de div. A. S. Pxasz, M. Tulli Ciceronis De Divinatione Libri Duo, Usbana 1920-1923, reprint Darmstadt 1963, Peass, Cic. de nat, deorum A. S. Pxase, M. Tulli Ciceronis De Natura Deorum 1~2, Cambridge (Mass,) 1955~1958, VaLeTon, Mnemosyne I. M. J. VateTon, De modis auspicandi Romanorum, Mnem- (volume, year, page) osyne 17, 1889, 275-325, 418-452; 18, 1890, 208-263, 406— 456; De iure obnuntiandi comitiis et conciliis, Mnemosyne 19, 1891, 75-113, 229-270; De inaugurationibus Romanis caeri- moniarum et sacerdotum, Mnemosyne 19, 1891, 405--460; De templis Romanis, Mnemosyne 20, 1892, 338-390; 21, 1893, 62-91, 397-440; 23, 1895, 15-79; 25, 1897, 93-144, 361-385; 26, 1898, 1-93. Wissowa, Augures G. Wissowa, Augures, RE 2, 1896, 2313-2344. Wrssowa, Auspicium G. Wissowa, Auspicium, RE 2, 1896, 2580-2587. Wissowa, Religion u. Kultus*G. Wissowa, Religion und Kultus der Rémer?, Miinchen 1912, * So e.g. Wissowa in the chapter on ‘Die Formen der Gétcerverehrung” discusses the con- cept of the ins divinum, but very soon he identifies it de facto with the ins sacrum, and goes on to treat in this context also of the auspicia (Religion u, Kultus? 380ff., 386-387). Very telling is from this point of view the title of J. Buxtcxzn’s illuminating article ‘Kollisionen zwischen Sacrum und Publicum’, Hermes 85, 1957, 446-480, for in the second part he discusses the problem of chnuntiatio (pp. 468-480), i.e. the ,,Kollision™ between the ins augurale and the ins publicum. 136 ANRW 1116.3 2148 J. LINDERSKL umguam contemnendam putavi mibique ita persuasi Romulum auspicits, Numam sacris constitutis fundamenta iecisse nostrae civitatis.? ‘The pontiffs are in charge of the sacra, and the augurs are in charge of the auspicia: sacris pontifices, . . . anspiciis augures praesunt.? Cicero uses here the terms sacra and auspicia in the technical, but at the same time also most general meaning. The term auspicia will refer to a) public functions of the augurs con- nected with the auspicia* b) divine signs the interpretation of which fell within the augural sphere of competence.$ Cicero in his constitution of the ideal Roman state describes in the following way the tasks of the augurs (de leg. 2.20~21)% 2 Cf, Pease’s commentary ad loc., vol. 2, 984-986, and below, n. 3. 2 Gic. de nat. deorum 1.122 (cf. 1.14 and Pease ad loce, vol. 1, 160-161, 533). Cicero mentions the threefold division of religio also in three other passages, de leg. 2.20: corm (sc. publicorum sacerdotum) antem genera sunto ria: unum quod praesit caerimoniis et sacris, alterum quod interpretetur fatidicorum et vatinm ecfata incognita, . . . interpretes autem Tovis optumi maxumi, publici angures, signis et auspiciis posteatt vidento (on the emendations of this passage see below, n. 7); de leg. 2,30—31: discriptiogue sacerdotum nullumn instae religionis genus praciermittit, nam sunt ad placandos deos alit constituti, qui sacris praesint sollemnibus, ad interpretanda alii praedicta vatium . . . maximum autem et praestantissimum in re publica ius est angurum cum auctoritate coniunctum; Har. resp. 18: Ego vero primum babeo auctores ac magistros religionum colendarum maiores nostros + qui statas sollemnisque caerimonias pontificatn, rerum bene gestarwm auctoritates ‘augurio, fatorum veteres pracdictiones Apollinis oatum libris, portentorum expiationes Etruscoram disciplina contineri putaverunt (cf. J. O. Lenacuan, A Commentary on Cicero’s Oration De Haruspicum Responso (Studies in Classical Literature 5}, The Hague 1969, 106--107, especially on Cicero’s inconsistency as to the place he assigns to the haruspices), See also Val. Max. 1.1.1: Maiores statas sollemnesque caerimonias pontificim scientia, bene gerendarnm rerum auctoritates axgirum observatione, Apollinis praedictiones vation libris, portentorum depulsiones Etrusca disciplina explicart voluerunt (this passage probably derives directly from Cic. har. resp, 18, cf, T. Kéves-Zutaur, Reden und Schweigen. Rémische Religion bei Plinius Maior [Studia et Testimonia Antiqua 12), Miin- chen 1972, 4345, with further literature in n. 65). Also Varro adopted in his ‘Antiquitates rerum divinarum’ the threefold division of the state religion, see August. de civ. Dei 6.3: tes (sc, libros), qui ad homines pertinent ita subdivisit, ut primus sit de pontificibus, se~ condus de auguribus, tertius de quindecimviris sacrorum. For the juxtaposition of sacra and auspicia, see also Cic. de domo 41: sacrortm inte pontifices et auspicioram religione angures . . .; 42: omni genere inris, quod in sacris, quod in auspiciis, quod in legibus sit. . « ‘Wissowa, Augures 2330, unduly restricts the meaning of the phrase auspiciis augures pracsunt to ,,Mitwirkung bei Einholung und Begutachtung der Auspizien, but cf. In.» Religion u. Kultus? 527. 5 This is an important qualification for the category of divine signs in general was much broader than the category of the signa axguralia proper, see CATALANO, Diritto augurale 343 p. 21, and below p. 2292. 1 quote according to the edition by K. Ziscu#r, Cicero. Staatstheoretische Schriften (Schriften u, Quellen der Alten Welt 31), Berlin 1974. The edition by G. Dr Punvar, Cicéron, Traité des lois (Collection Budé), Paris 1959, is quite unreliable (at least as far as the res auguvales ace concerned). The commentary ad loc. by A. Du Mrswn. (M. Tullii Ciceronis De legibus libri tres, Leipzig 1879) is still useful, but it is bound to confuse the uninitiated for it freely mixes vera falsis. This is of course also true of all older com- THE AUGURAL LAW 2149 Interpretes autem lovis optumi maxumi, publici augures, signis et auspiciis postea} vidento’, disciplinam tenento, sacerdotesque vineta virgeta et salutem Populi anguranto®, quique agent rem duelli quique popularem, auspicium mentaries which are conveniently accessible in G. H, Mosee’s edition of ‘De legibus’, Frankfurt 1824 (reprint Hildesheim 1973), The article by M. van pew Bruwarne, Préci- sions sur la loi religieuse du de legibus II 19-22 de Cicéron, Helikon 1, 1961, 40-93, esp. 43, 83-90, contains a number of imprecisions and outright fantasies. E. Rawson, ‘The Interpretation of Cicero’s ‘De legibus,, in: ANRW 1 4, Berlin-New York 1973, 334~356, provides an excellent general introduction, but on p. 346 she has missed or telescoped some fine augural points. Cf. also J. Turem, Cicéron, De legibus I/II et la religion romaine: une inverprétation philosophique & la veille du principat, above in this same volume (ANRW II 16.3), 1844-1876. ‘The present vulgate reading (which goes back to Tuanepus or Lammnvus, cf. Moser’s edition ad loc. p. 211) is postera vidento, and most commentators and translators take the whole phrase to mean that the augurs predicted the future (so e.g. Du Meswtt, Di Puinvat. and C. W. Kevgs in Loeb Class. Library [1943]: “shall foretell the future from portents and auspices”, where he mistranslates the neutral signis as portents). But most modern augural scholars think that this interpretation is improbable. It runs counter to the un- equivocal statement of Cicero in de div. 2.70: sed primum auspicia videamus. Difficilis auguri locus ad contra dicendum (i.e. against the existence of divination). Marso fortasse, sed Romano facilluraus. Non enim sumus ii 208 angures qui avium reliquorumve signorum observatione futura dicamus (cf. Wissowa, Augures 2325), It is only the foreigners like Diviciacus Haeduus (Cic. de div. 1.90) or the Greek seers Amphilochus, Mopsus, Amphiacaus and Tiresias, qui avibus et sigais admonici furura dicebant (de div. 1.88). Wissowa, Augures 2325, praises P. Receti’s conjecture (De augurum libris 25, note) operam danto, and ZizGiar had introduced it into his text. Auspiciis operam dare was in fact a standard augural phrase, see Ennius, Ann. 78 V.; Varro, de ling. Lat. 6,91 (BERGK’s emendation); Festus 276.26 L.; Cic. ad Fam, 10. 12.3, So much against the reading postera vidento. But whatever doubts may surround the reading postera, there is no reason for removing vidento from the text, Video (visus) was a technical term with respect to prodigia (see Obsequens passim}, but it seems to have also been an augural expression, ef. Cic. de div. 2.78; Propert. 4.6.445 Val. Max. 1.4.2; Serv. Aen. 2.691; 9.24 (W. Hésner, Dirae im rémischen Epos [Spudasmata 21}, Hildesheiin 1970, also lists video as an augural word (p. 130], but all his examples refer to prodigia {p. 56)). But the textual question and the augural interpretation are two different things. The text need not always reflect the doctrine. We have to remember that the Cicero who wrote the second book of ‘De divinatione’ and Cicero, the stern legislator of the ‘De legibus’, are not one and the same person, at least as far as his philosophical views are concerned. At de leg. 2.33 he expressly states that ex augurum pracdictis multa incredibiliter vera cecidisse. This seems to me to tilt the balance in favor of the reading postera vidento, but it obviously does not solve the more fundamental question of what the augurs really thought of divination. De Purnvat prints the following text: sacerdotesque [docento], uineta wirgeraque ad salute populi anguranto; Zoscuer keeps the textus veceptus, but departs from it in his translation: die... Auguren sollen .. . die Priester die Weingirten, die Pflanzungen zum Heil des Volkes (this presupposes the reading ad salutem) weiben.* VAN DEN BRU- WAENE proposes to read disciplinam tenento sacerdotesque {op.cit. [above, n. 6] 43, cf. 89-90). Now we do not know anything of the augurs teaching or supervising other priests or inaugurating them ad salutem populi. We do know, however, that they in- augurated priests and performed the augurium salutis, see Catarano, Diritto augurale 211ff., and below, p. 2215ff., 2255f. 6 2150 J. LINDERSKI praemonento ollique obtemperanto. divorum iras providento sisque® appa- vento, caelique fulgura regionibus ratis temperanto'®, urbemque et agros et templa liberata et effata habento. quaeque augur iniusta nefasta vitiosa diva deixerit, invita infectaque sunto, quique non paruerit, capital esto. ‘M. van DEN Bruwaene imagines that Cicero «introduit ict un véritable fragment des textes officiels des angures. »*\ A good side of fantasies is that they requite no refutation, The real task is to investigate the relation between Cicero’s lex de auguribus and the augurs’ actual place in the system of the Roman constitution. G. Wissowa enumerates in his classic article in RE the following major prerogatives, fields of competence and obligations of the augures publici populi Romani™: a) the anguria, i.e. those ritual acts and actions which the augurs per- formed independently (,,selbstiindige Kulthandlungen") ) the theory of the auspices c) the establishment and control (,,Herstellung und Uberwachung) of the templa. The classification of Wrssowa has never been challenged, although on closer scrutiny it appears both inadequate and misleading. First of all there is no 2 De Punvan reads ostentisque apparento, but the augurs had nothing to do with the ostenta, The theory of ostenta formed part of the disciplina Eerusca, see C. O. THuuin, Die etruskische Disciplin, Teil 3, Géteborg 1909, 774f. (reprint Darmstadt 1968). Zivoren gives the following translation: ,,sie sollen ... wobl darauf bedacht sein, die Blitze des Himmels am rechten Orte zu sithnen.“ He confuses in this way the augural observations of fulgura with the expiationes of thunderbolts, which Cicero discusses a few Tines below (2.21: filgura atque obstita planto). The expiatio was the task of the pontiffs and haruspices, see THULIN, Die etraskische Disciplin (see above, n. 9), Teil 1 (1905) 854, On different meanings of fulgur and fulmen (especially in the augural terminology), see Taurin’s excellent article ‘Fulgur, fidmen und Wortfamilie’, Archiv f, Jat. Lexiko- graphie 14, 1906, 369-391, $09~514, esp. 372-376. Ziratan obviously tales tempero in the sense of mollio, but in this place it expresses the idea of the augurs ordering, defining and delimiting the filgura (here = flashes of lightning) according to the fixed regions of the sky, of. de leg. 3.43: cxelique partes sibi (i.e. auguri) definitas esse waditas. The correct explanation was already found by Tuxnswus. For this meaning of tempero, see Horace, Catm. 3.4.45: qui terram inertem, qui mare temperat (referring to Jupiter), and the commentary ad foc. by R. G. M. Nrspet and M, Hunsarp, A Commentary on Horace. Odes Book 1, Oxford 1970, 150-151. Op.cit. (above, n. 6) 90, Wissowa, Augures 2325ff., 2330ff., 2337. For the history of the collegium augurus, see also V. Spinazzoxa, Augur, Diz. epigr. 1, 1895, 778-810, and for the fasti angerum C. Bart, Die Priester der vier grossen Collegien aus rémisch-republikanischer Zeit, Progr. Berlin 1871, and G. J. Sziurn, The Priests of the Roman Republic (Coll, Latomus 127) Bruxelles 1972 (to be used with caution; quite confused as to the theoretical aspects of the anspicia, cf. esp. pp. 24~26, 45~46). For the fasti augurum of the imperial period, sce M. W. Hozrman Lewis, The Official Priests of Rome under the Julio-Claud- jans (Amer. Acad. in Rome, Papers and Monographs 16), Rome 1955; L. ScHumacier, Prosopographische Untersuchungen zur Besetzung der vier hohen rmischen Priester- kollegien im Zeitalter der Antonine und der Severer, Diss. Mainz 1973. Ci. also Ip., Die vier hohen rémischen Priesterkollegien unter den Flaviern, den Antoninen und den Severern (69235 n. Chr.}, ANRW II 16.1, Berlin-New York 1978, 655-819 ‘THE AUGURAL LAW 2151 theoretical basis for drawing a dividing line between the auguria and inaugura- tiones on the one hand and the establishment of the tenapla on the other. In order to establish a templom one had to inaugurate it, and the augurs performed the inaugurationes of persons (sacerdotes), ceremonies (e.g. the azgurium salutis) and loca (i.e. templa). Furthermore in his discussion of templum Wrssowa obscures the basic difference between the concept of templum as the field of vision (which was delimited by means of the concepta verba for each new observation of the signa) and the templum as the locus inauguratus (which was established once and for ever through the ceremony of inauguratio). Cicero’s prescription (augures) caelique fulgura regionibus ratis temperanto refers to the templum as the field of observation, and the immediately following ordinance (a#gures) urbemque et agros et templa liberata et effata habento (de leg. 2.21) has as its object the loca terrestria, The category of independent augural acts also requires clarification. W1s- sowa rightly points out that we have to distinguish between the acts performed by the augurs themselves and the acts at the performance of which they only assisted. But he does not take into account another important feature of the augural acts, In some cases the augurs could take the initiative (e.g. as regards the obnuntiatio), in some other cases, however, they could act only if they were called upon by a competent magistrate, priest (especially the pontifex maximus) or the senate. The importance of this circumstance for the classification of the augural acts is evident. But above all Wissowa has failed to differentiate between the prerogatives and functions of individual augurs and the responsibilities of the collegium augurum as a collective body. In conclusion I propose to base the classification of the augural acts on the principle of two complementary oppositions: a) the collegium versus the singuli augures b) the existence or non-existence of the augural initiative. I hope this classification will provide interesting insights into the relationship between the augural and the public law. IL. The collegium augurum: its functions, prerogatives and obligations, decreta and responsa i. The text of Cicero, de legibus 2.31, is of particular importance for the demarcation of the spheres of competence of the collegium and of the individual augurs. It reads as follows: Maximum autem et praestantissimum in re publica ius est augurum cum auctoritate coniunctum, neque vero hoc quia sum ipse augur ita sentio, sed quia sic existimari nos est necesse. quid enim mains est, si de inure quaerimus, quam posse a summis imperiis et sammis potestatibus comitiatus et concilia vel instituta dimittere vel habita rescindere? quid gravius quam rem suscep~ 2152 J. LINDERSKI tam dirimi, si unus augur ‘alio (die}™ dixerit? quid magnificentius quam posse decernere, ut magistratu se abdicent consules? quid religiosius quam cum populo, cum plebe agendi ins dare aut non dare? quid, legem si non jure rogata est tollere, ut Titiam decreto conlegi, ut Livias consilio Philippi consulis et auguris? nibil domi, nihil militiae per magistratus gestum sine eorum auctoritate posse cuiquam probari? Cicero does not legislate in this passage; he purports to describe the actual position of the augurs in the state. The mention of wnus augur at once attracts our attention. It was the privilege of a single augur rem suspectam dirimere. With this prerogative of unus augur Cicero contrasts the prerogative to decree (de- cernere) ut magistratu'se abdicent consules. He alludes here no doubt to the action of the college, for a few lines below he mentions that the lex Titia was invalidated decreto conlegi. Now we would like to know in which cases the colleginm was entitled to intervene and in which the unus augur. The answer suggests itself. When the snus augur pronounced the formula alio die he based his intervention on the observation of an unfavourable sign.’4 On the other hand the collegium had nothing to do with the actual observation of the signa. The signs were observed only by those who either themselves took an action (agere or rem gerere in the augural parlance) or assisted at it (iv auspicio esse). Neither the collegium augurum not the senate held the auspices or observed the sky, but the magistrates and individual augurs did. It is the individual augurs who augurant, provident (deorum iras = diras) and fulgura temperant (Cic. de leg. 2.20-21). 2. The major duty of the colleginm was disciplinam tenere™s (Cic. de leg. 2.20), As a corporate body the collegium was an eternal receptacle of the disciplina anguralis; it had to preserve it, and transmit it intact to succeeding generations of augurs. This idea of the apostolica successio of the occult augural knowledge is well expressed in a passage of Festus (14~15 L.): arcani sermonis significatio trahitur sive ab arce . . . sive a genere sacrificii, quod in arce fit ab auguribus, adeo remotum a notitia vulgari, ut ne litteris quidem mandetur, sed per memo- riam successorum celebretur. Cicero complains that the college was negligent of its duty as the guardian of the augural tradition; negligentia nobilitatis angurii disciplina omissa veritas auspiciorum. spreta est, species tantum retenta, itaque maximae rei publicae partes, in his bella quibus rei publicae salus continetur, nullis auspicits administran- tur, nulla peremnia servantur, nulla ex acuminibus, nulla cum viri vocantur.*® 13 "Turnenus supplement die is certain, cf. Cic. Phil. 2.82: Confecto negotio bonus augur . . “alio die” inguit. 14 See Cie, Phil. 2.80-84, 88, and I, M. J. Varo, De jure obnuntiandi comitiis et conciliis, Mnemosyne 19, 1891, 94-97. 15 For the phrase, cf. the exclamation of Ti, Sempronius Gracchus (cos. 163), Cic. de nat. deorum 2.11: An vos Tusci ac barbari (= haruspices) auspiciorum populi Romani ius tenetis et interpretes esse comitiorum potestis? Cf. also de div. 1.25. 16 Cie. de nat. deorum 2.9, to be read with Pease’s extensive commentary. THE AUGURAL LAW 2153 But it was not much better in earlier times, at the very height of the rule of the nobilitas. In any case this was the opinion of Cato the Elder: itague multa auguria, multa auspicia, quod Cato ille sapiens queritur, negligentia collegi amissa plane et deserta sunt.*? Already M. Marcellus, ille quinguiens consul... idem imperator, idem augur optumus, completely disregarded the auspicia ex acuminibus.*® In. order to find the augural discipline at its acme it is necessary to go back to the optumus augur Romulus, or rex Hostilius, or to that golden augural age, when exactis regibus nibil publice sine auspiciis nec domi nec militiae gerebatur, when at first the reges augures, and then privati eodem sacerdotio prae- diti rem publicam religionum auctoritate rexerunt.? ‘The nobles and the principes civitatis, who were also members of the augural college, and who took the disciplina seriously, must have found themselves in all periods of Roman history in a difficult doctrinal situation. They had to preserve the doctrine, to “keep” the disciplina, and oppose any and every change. This they did in their capacity as augurs, but at the same time as leaders of the state they had to adapt the augural rules to new political and social situations. After they intro- duced, or were forced to introduce, social and political changes, they had to justify them as augurs. They could do this because they were the only official interpreters of the augural law, and in this respect they were not bound by the ins publicum. There was a dispute whether the college was established under Romulus or Numa, but nobody doubted that it predated the republic. No lex publica ever circumscribed or defined its competences; like most republican institutions it had no founding charter. The augural rules were recorded in the libri augurum. In most cases they could not be changed, but they could be reinterpreted or interpreted away. Another important function of the college was to keep watch over the proper implementation of the augural prescriptions in public life. This raises interesting questions. In which way was the college ‘keeping’ or changing the disciplina? What were the means through which it expressed its opinion? What was the normative legal value of an augural opinion? 17 Cie. de div. 1.28, It is not certain whether Cato himself was an augur (chis depends upon whether we read at Cic. de senectute 64 in nostro or in vesiro collegio), but he was very much interested in the res azgurales, cf. his speeches ‘De auguribus’ (Festus 277 L. = H. Maxcovart, Oratorum Romanorum Fragmenta’, Aug. Taurinorum 1955, frg. 220, p. 89), and ‘De aedilibus vitio creatis’ (Gell, 13.8.1 = Matcovary, frgs. 217~218, p. 88. For a discussion of this speech, see D. Kisnasr, Cato der Zensor, Heidelberg 1954, 40-43; A. E. Astin, Cato the Censor, Oxford 1978, 18-19). *8 Cie, de div. 2.77, and Puast ad loc. pp. 475~476. * Cic. de div. 1.3, 89; de nat. deorum 2.9. Cf. Liv. 1.36.6: Auguriis certe sacerdotiogue angurum tantus honos accessit ut nibil belli domiqne postea (i. after the miraculous avign- rium performed by Attus Navius) nisi auspicato gereretur. Cf. T. J. Luce, Livy, Princezon 1977, 240-241. 2 On this aspect of the Roman constitutional system, see the excellent studies by A. Macps- zatn, Recherches sur Pimperium. La loi curiate et les auspices dinvestivure, Paris 1968, 6ff., and J. Brercxun, Lex Publica, Berlin 1975, esp. 152-156, 348ff. 2154 J. LINDERSKI 3, The collegium angurum, like other priestly colleges," promulgated documents which are referred to in our sources as decreta and responsa. The meaning of those terms and their legal nature, especially in connection with the ius publicum, has been disputed. Wissowa interprets (or rather translates) the decreta as ,,Beschliisse and responsa as ,, Rechtsgutachten“.” P, ReGELt. similarly speaks of ,, Bescbliisse“ and ,, Bescheide“.?> Of course it is obvious that a decretum is a decree or a ,,Beschlu, but the difference between a ,,Beschlupi and a » Bescheid“ is nov obvious at all. Now, I think we can at once point to one basic distinction that seems to have always obtained between the augural decreta and responsa: the decretsm was promulgated by a collective body, the responswm was an answer given either by a collective body or by an individual.% In the former case the responsum was at the same time also a decree insofar as it was a result of deliberations and presumably the votes of the collegivm. ‘The responsum presupposes the existence of a question to which it constitutes the reply: it has 10 be initiated by a third party. On the other hand the initiative to issue a decree lay in the hands of the collegiam (or in any case of its presiding offices). In con- 21 Mommsnn, Staatsrecht 2°.44—47; Wissowa, Religion u, Kultus? 395, 514~515, 527, 530-531, 551. ® Wissowa, Augures 2323. 2 P, Receti, Fragmenta augaralia, Progr, Hirschberg 1882, 8. 24 On the development of the concept of decretum, see Mowsin, Staatsrecht 3.994~997, 999-1000. 28 This was in any case the procedure followed by the colleginm pontificum, Liv, 31.9. 7-9, It is not clear how many augurs had to be present in order that their decision could be regarded as decretum collegii. Cicero, de har. resp. 12, intimates that qvod tres ponti- {ices statuissent was regarded as the decision of the college (accepted by Momnsan, Staats recht 2.46 n. 2; cf. also the legal maxim tres colleginm faciunt). 1s is, however, important to point out that the pontiffs and the augurs had to be convoked as the colleginm (cf. below, n. 43 on the phrase ad collegixm referre); the responsa of three individual augurs did not constitute a responsum of the collegiwm. It is interesting to observe in this connection that the testimony of three augurs was required to attest (in doubtful eases) to the passage of the lex curiata, Cic, ad Att. 4.17.2. 26 Tt is, however, not clear if the augural college had any permanent presiding officer. Cicero, de sencctute 64, gives the following description of the internal organization of the college: multa in collegio vesivo praeclara, sed hoc, de quo agimus, in primis, quod ut qnisque etate antecedit ita sententiae principatum tenet, neque solum honore antecedentibus, sed iis etiam, qui cum imperio sunt, maiores natu augures anteponntir. MARQUARDT, Staats- verwaltung 32,399, and Wissowa, Augures 2322, concluded on the basis of this text that the eldest augur exercised the presidency, and that his official title was augur maxinis. [As a proof Wissowa adduced two African inscriptions, CIL 8.7103 (= Inser. Lar. Alg. 682) from Citta, and 8.20152 from Cuicul (a, 147 C.E.), where Momsen ad loc. pro- posed to read in lines 13~14 maxtimus) ang(urum). This explanation was generally accepted, and still in 1942 the augur maximus appeared in the title of J. Lisois’s article in ‘Hermes’, But in 1937 L. Lescu published ‘Une inscription romaine de Constantine’, Bull, arch. du Comité des Trav. hist. 1936-1937, 325—329 (reprinted in his “Erudes @épigraphie, darchéologie ot Phistoire africaines’, Paris 1957, 139-140) = Inser. Lat. Alg. 687 (I/II century C.E.). In lines 5~6 we clearly read auguri, mag(istro) angur(um). Consequently in CIL 8,7103 = Inser. Lat. Alg. 682 (cf. Priaum ad foc.) lines 2~3 are to be restored as auguri [magistro aJuguram VIT (so already Wrimans ad loc, in CIL), THE AUGURAL LAW 2155 clusion we may say that every responsum of the college was also a decree, but not every decree was a responsum. Furthermore with respect to the augures we have to distinguish carefully between the responsa of the collegium, and the responsa which were given by individual augurs. As far as I can see, most scholars who dealt with this subject tended to confound those two categories of the augural responsa, which in turn engendered considerable confusion with respect to some important aspects of the augural doctrine, especially the theory of the obnuntiatio and the servare de caelo. Unfortunately there does not exist any modern collection of the decreta augurum (nor does there exist any collection of the pontifical decrees or any comprehensive collection of the senatus consulta, for that matter). I do not propose to present in this paper a corpus of the augural documents, but I hope I have not missed any important texts. In this place I should like to analyse the form and the content of augural decrees and the procedural aspects of passing a decree and giving a responsum. ‘The decreta and responsa of the collegium can be divided from the point of view of their content into two categories: the decrees concerning the disciplina auguralis in the strict sense (4.); the decrees concerning the application of the ius augurale in public life (5.). 4, There is no doubt that with respect to the disciplina the augurs could issue all kinds of regulations on their own initiative. In earlier republican times the augurs habitually met on the Nones of each month commentandi causa, but by Cicero’s time this custom seems to have already fallen into oblivion.?7 It is possible that most important results of their deliberations were recorded and promulgated as decreta. Strangely enough, we seem to know of only one augural decree concerning theoretical tenets of the disciplina, Cic. de div. 2.73: Quo (sc. auspicio pullario coacto) antiquissimos augures non esse usos argumento est quod decretum collegi vetus habemus omnem avem tripudium facere posse. It is rather difficult to reconstruct the precise augural context of this decree. Cicero mentions it in the course of his diatribe against the disregarding of the auspices. He argues and in CIL 8.20152 we have to read in lines 13-14 augur) mag(ister) ang(urum) bis. The mention of magister bis and magister septies seems to show that we have here to do with an annual office, but this does not preclude the possibility that it was occupied by the eldest member of the collegium (cf. Lescut, Etudes 140). The epigraphical texts from Cirta and Cuicul aside, the relevance of which for the organization of the republican collegium augurum is neither compelling nor immediately obvious, we are left with the enunciations of Cicero. It should have always been clear that Cicero does not allude at all co the presidency in the college but co the order in which the members of the college expressed their opinions. This is the only possible meaning of sententiae principacuon (cf for parallels de domo 10, 30; har, resp. 13; pro Balbo 61; de fin, 5.20. ‘The princeps senatus did not preside in the senate, but we may say that he sententiae principatum tennit). Fortunately most translators have not been misled by artificial constructions of antiquarian historians, and have kept vo the obvious meaning of the text, ef. e.g. recently P. Wun. veuaer, Cicéron, Caton PAncien (Coll. G. Budé), Paris 1961: «les membres commencent a donner leur avis par rang d’age», 27 Cic. de amicit. 7; de div. 1.90. 2156 J. LINDERSK? that the auspicia de tripudiis, hace certe quibus utimur (i.e. when the chickens were kept inclusi in cavea et fame enecti, de div. 2.73), simulacra sunt auspicio- rum, anspicia nullo modo (de div. 2.71). In order to be genuine the auspicia de tripudiis must be libera, i.e. they must occur without any intervention on the part of men. The auspicia ex tripudiis were originally oblative auspices, but when the chickens began to be employed for that purpose, the tripudia were practically transformed into the auspicia pullaria, and became de facto a kind of impetrative auspices.28 It was perhaps in this connection that the collegium augurum issued a decree stressing the older doctrine according to which any bird (and not particularly or exclusively the pulli) could make a tripudium. But also a different interpretation is possible. ‘There were only a few kinds of aves augurales proper, and the augurs may have felt the need to point out that, as far as the tripudium was concerned, every avis qualified.?° In Cicero’s ideal Roman state the augurs urbemque et agros et templa liberata et effata habento (de leg. 2.21). This also was their task in the real Roman state, ‘The augurs could proceed to the inaugwratio of a templum (the consultation of signa and the liberatio and effatio loci constituted the three basic parts of the ceremony), and to the liberatio and effatio of the urbs and the agri%* only if 2 See VaLRTON, Mnemosyne 18, 1890, 211~215; Pease ad Cic, de div. 1.27 (p. 132); G. B. Prom, Tripudium, Rend. della Acad, delle Scienze di Bologna, Classe di Scienze Morali, Ser. 5, vol. 3, 1949-1950, 157; E. Marsacu, Tripudium, RE 7 A, 1, 1939, 230-232, 2 Recent, Fragmenta auguralia, Progr. Hirschberg 1882, 9. As to the dave of this decree the expressions antiquissimos augures and decretwon vetus are of little help: they need not mean anything more than ‘some time before the age of Cicero’. Pras at de div. 2.73 (p. 469) suggests that the same decree is also referred to in the corrupt passage de div. _ 128: Quod ante scription babetis + aut (emended by Turwepus and others t0 avi, © by Pease hesitatingly to omni avi) tripudinm fieri, si ex ea quid in solidum cecideris. * R. Gromit proposes 10’ read"in his edition of ‘De divinatione’ (Bibl. Teubn., Leipzig 1975) pulte tripudium fieri. 2 See Caratano, Diritto augurale 247-306, whose lucid presentation is to a large extent based on fundamental but often incoherent studies by VaLETon in Mnemosyne 20, 1892, 338-390; 21, 1893, 62-91, 397-440; 23, 1895, 15~79; 25, 1897, 93-144, 36t— 385; 26, 1898, 1-93. 31 The meaning of the phrase is disputed. Vataton, Mnemosyne 20, 1892, 365~366, is of the opinion that ,,urbs et ager... nibil alind est quam prospectus ex Arce in urbem agrosque (Liv. 1.18.7), qui ipse est prospectus in pomerium' {p. 366). On p. 378 he writes: ,Urbem et agros ‘liberata habere’ ext prospectim ex arce in pomerium . . . im mutatum servaré, ‘ne quid auspicis urbanis officiat'"; ,urbem et agros ‘effata. habere nihil alind est quarn locum. muri effatum babere". Ch. Mnemosyne 21, 1893, 66 n. 3. CaraLano, Diritto augurale 290 n, 173, tends to accept the interpretation of VALETON, and he accepts it decisively in ‘Aspetti spaziali”, p. 489: ,i/ nesso strettissimo esistente fra terbs e ager... si manifesta nel significato dell’espressione ‘urbs et agr?, equivalente a pomerium. The position of Caraano is rather inconsequential, for the interpretation advanced by Vaieron ultimately rests on his theory (which Catarano, Diritto augurale 302-303, seems to reject) that the expression finis urbani auspicit (Gell. 13.14.1) does not refer to the distinction between the axspicia domi and militiae, but to porerinm as the finis of the field of observation. A. MacpzLany, Le pomerium archaique et le nuundus, Rev. Et, Lat. 54, 1976 (1977) 71-109, argues that only the urbs as such was inaugurated, but not the pomerium {he revives in this way the idea of some earlier scholars which THE AUGURAL LAW 2157 they were ordered to do so by a competent magistrate,*? but afterwards the colleginm augurum was obliged to keep the loca in question permanently ‘liberat- ed’ and delimited. They were especially concerned with the proper and visible demarcation of the pomerinm, which constituted the border line between the urbs and the ager effatus and formed the finis urbani auspicit.33 The cippi pomerii ser up in 121 C.E. refer to this activity of the collegivm: Ex s(enatus) c(onsulto) col- legium augurum auctore imp(eratore) ... Hadriano ... terminos pomerii seemed to have been definitely refuted by VALETON, Mnemosyne 21, 1893, 65~67, cf. Caratano, Diritto augurale 305-306; Ip, Aspetti spaziali 479ff.). The liberatio and effatio would refer to the whole of the urbs and the ager (which was liberatus and effatus, but not inanguratus). The augurs:by periodically repeating the liberatio and effatio were removing the hostile spirits from the wrbs and ager (pp. 71-73, 96). But we should not confuse or identify the lberatio and che effatio. The purpose of the effatio was not to remove anything, but to delimit and separate different loca by drawing the fines or regiones (MacDELaIN, p. 74, misunderstands the meaning of the term regio in Gell. 13,14.1. Ia augural parlance regio was often used in the sense of finis, see B. Norpen, Aus altrémischen Priesterbiichern, Lund 1939, 40, 71, 77). The act of effari cannot apply to the urbs as such, but only to the pomerivm and other augural lines (e.g. the line separating the ager effatus from the rest of the ager Romanus). Nor can iberare apply to the whole of the urbs for this would have prevented all profane activities from being conducted in the urbs, and would have signified the end of the city. Consequently, also the act of liberatio must have been concerned with the fines of the urbs and the agri, When the cippi pomerii became vetustate collapsi, 20 new inauguration of pomerium was necessary, but the very decay of the markers pointed to the necessity of a new liberatio and subsequent effatio, the renewal of the delimitation of regiones with respect to the new cippi (see below in the text), It follows from this discussion that also the theory of VALETON (and Castano) must be rejected. Cicero’s prescription urbem liberatam habento referred to the pomerium, and had nothing to do with keeping un- obstructed the field of vision from the arx or other templa (see below in the text). Cicero also speaks of rempla liberata et effata habere and the liberatio of a templum will have also included the ‘liberation’ of its prospectus. And finally I should like to point out that most, if not all, commentators of our text (even CaTatano, to whom we owe an inspiring presentation of the augural theory of the genera agrorum, ‘Aspetti spaziali’, section IV) tend to disregard Cicero’s plural agros. The #rbs was surrounded by only one kind of ager, the ager effatus (Gell. 13. 14.1; Serv, Aen. 6,197). The conclusion seems in- escapable: the augurs were interested in keeping permanently ‘liberated’ and delimited not only the pomerium, but also all the lines that separated from each other different categories of the agri, e.g. the ager effatus, ager Romanus, ager peregrinus, ager Gabinus (and each of these genera agrorim seems to have had auspicia singularia, Varro, de ling. Lat. 5.33). This interpretation is corroborated by a notice in Marius Victorinus, Ars grammatica 4.42, concerning the auspicium pertermine: pertermine dicitur auspicium quod fit cum de fine Romano in agrum peregrinum transgrediuntur. But in order that the travellers should know in which place to auspicate, the fines agrorum must have been clearly marked (it is a great merit of H. DAHLMANN: to have called attention to the text of Marius Victorinus, see his studies ‘Zur Ars Grammatica des Marius Victorinus’, Wies- baden 1970, 106~109, and Ip., Zu Vatros antiquarisch-historischen Werken, Arti del Congreso Internazionale di Studi Varroniani 1, Rieti 1976, 170ff.). 32 See below, p. 2223 ff. 98 Varro, de ling, Lat. 5.143; Gell. 13.14. 1, quoting the augures populi Romani, qui libros de auspiciis scripserunt. 2158 J. LINDERSKI restituendos curavit.34 The collegium had a general cura in this matter, but the formula of iberare and effari (and effari means certis verbis definire, Fest. 146 L, s.v. Minora templa) was undoubtedly pronounced by a single augur. "The augurs were also interested in keeping free from any obstruction the prospectus*® from the templa, i.e. in other words the templum in aere ox the field of observation which was delimited conceptis verbis with respect to some land- marks in the terrain. Cicero, de off. 3.66 (cf, Val. Max. 8.2. 1) provides interest- ing information in this respect: cum in arce augurium angures acturi essent issis— sentque T. Claudium Centumalum, qui aedes in Caelio monte habebat, demoliri ea, quorum altitudo officeret auspictis, Claudius proscripsit insulam, emit P. Calpurnius Lanarins. Fuic ab anguribus illud idem denuntiatum est (The legal argument between Calpurnius Lanarius and Claudius Centumalus was decided by M. Cato, and as Cato died in 91, this provides us with the terminus ante quem). C. Marius was more careful, Fest. 466/8 L.: Summissiorem aliis aedem Honoris et Virtutis®® C. Marius fecit, ne, si forte officeret auspiciis publicis, angures eam de- moliri cogerent. In the time of Hadrian the colleginm acted ex senatus consulto and auctore imp. Hadriano; with respect to the aedes of Claudius Centumalus there is no doubt that the augurs themselves took the initiative (it seems to me certain that the plural axgures denotes here the collegium). Elow are we to explain the dif- ferent role played by the college in these two cases? I think we should seek thé explanation in the intricacies of the disciplina itself rather than in the transition from the Republic to the Empire. The liberatio of a locus meant the removal of all unwanted or hostile spirits and of all human influences, and together with the effatio, the drawing of the fines, it created a permanent legal situation. It immediately affected the public law. Neither the college nor the individual augurs enjoyed freedom of action in this respect. On the other hand the templum in aere, the field of vision, was of great importance for the disciplina and of littie con- sequence for the ins publicum. ‘To keep it ‘liberated’ or unobstructed might have necessitated a lot of demolition, but this was a purely mechanical operation. No formulas needed to be pronounced {in the case of liberare and effari the augurs themselves recite the formulas, in the case of officere auspiciis they simply order the proprietor to demolish the house}, and hence no new augural and public reality could be created. 5. Let us now turn to a more systematic discussion of the augural decrees concerning the ius augurale publicum. From the point of view of their subject matter they can be divided into three distinct categories: 33 CHL 6.31539a~c} Not. Scavi 1933, p. 241. See also I, Lueu, Fontes ad topographiam veteris urbis Romee pertinentes 1, Roma 1952, 128-131; M. Laproussr, Le pomerium de la Rome impériale, Mél. Ecole Fr. Rome 54, 1937, 165~199, esp. 170-171. 35 For the term, see Liv. 1.18.6: (augur) prospecti: in urbem agrumque capto. 36 Cf, §, B. Pratner—T. Asuny, A Topographical Dictionary of Ancient Rome, Oxford 1929, 259-260, THE AUGURAL LAW 2159 a) the decrees that dealt with violations of augural rules or, to put it in the augural parlance, the decrees that established the occurrence of vitivm. A decree of this kind would normally contain a résumé of the case, and a detailed ex- plication of the nature of the vitiam. This is the most numerous category of the augural decrees, and in this paper I shall be able to discuss only those which appear most interesting from the augural (not necessarily historical) point of view; b) the explanatory decrees that elucidated some unclear notions or formulations in the augural documents or formules; c) the decrees that dealt with religio or, more exactly, with the removing of religio, the term religio meaning here the religious (= augural) obstacle. The term religio seems to point to abstruse dogmatic issues, but quite on the contrary the decrees in question were of great historical importance. Some of them, itis true, dealt with obscure but augurally fascinating specific cases, but they also suspended and changed (i,¢. reinterpreted) outdated augural rules and in this way adapted the ins augurale to changes in Roman constitution and society. 6. As far as the procedure is concerned it is interesting to observe that Livy, next to Cicero our most important source in this respect, never attributes the initiative to the augurs. His terminology is revealing: the augurs are vocati (23.31. 13) or consulti (4.31.4; 8.23. 14), the question is referred to them (45.12.10: ad [augures) relatwm est; see also Cic. Phil, 2,83: quae [sc. acta Dolabellac] necesse est aliquando ad nostrum collegium deferantur).3” At the same time Livy never 87 On this basis Wissowa, Augures 2334, arrived at the conclusion that the augurs could not establish the occurrence of vitinm ,,aus eigener Macheoollkommenbeit, obne Auf- forderung des Senats* (s0 also L. Lance, Rémische Alverthiimer 19, Berlin 1876, 340). ‘On the other hand Moneasan, Staatsrecht 12,115—116, argued that the colleginm could take the initiative and report the occurrence of a vitizan to the senate, In fact Ti. Gracchus (cos. 163), when he realized that he had commited a vitivm as the presiding officer at the consular elections for 162, ¢ provincia litteras ad colleginm misit . . . angures rem ad senatum; senatus ut abdicarent consuiles; abdicaverunt (Cic. de nat. deoram 2.11, of. de div. 1.33, 2.74; so also Val. Max. 1.1.3). Plutarch, Marc, 5, has Gracchus write dizectly to the senate and does not mention the participation of the collegizm at all. But his account is confused, and it cannot invalidate the information provided by Cicero and Valerius Maximus. There cannot be any doubt that in this case the collegizm referred the question to the senate and not vice versa, But at the same time it was rather an unusual case. Once Ti. Gracchus stated that he had forgotten to auspicate when he crossed the pomerium, the question was luce clarins: the vitivm was obvious, and no further imerrogation or investigation was necessary. Now according to the senatorial procedure any person had the right to bring any information to the attention of the senate or more exactly of the presiding officer who would then decide whether to refer the question to the full senate. In this case we have to do with what was technically called nuntiatio sacerdotum (Momustn, Staatsrecht 3.958-959, cf, also the nuntiatio of the prodigia, Movamsen, Staatsreche 3. 1059-1060; F. Lurernacstn, Der Prodigienglaube ‘und Prodigienstil der Rémer, Progr. Burgdorf 1904 [reprint Darmstadt 1967}, 33-34, 4445). On the basis of the announcement of the augurs (nuntiatio ~ not to be confused 2160 J. LINDERSKI explains who referred the question to the collegizm, to whose inquiry the augurs responderunt (41,18.8) or who had them convened. Nor does he mention the intervention of the senate or the magistrates after the augurs had made up their mind and passed a decree. The consular tribunes in 444 augurum decreto .. . honore abiere (4.7.3, cf. Dion. Hal. 11.62.1); C. Marcellus also abdicated at once (in 215) when the augurs declared him (pronuntiaverunt) vitio creatum (23. 31.13), and in 337 cum augures vitio creatum videri dixissent, dictator magister- que equitum se magistratu abdicarunt (8.15.6).3° Te would almost seem that the augurs had the power of inris dictio and indicatio which is ascribed to them in the lex Coloniae Iuliae Genetivae, cap. 66: de auspiciis quaque ad eas res pertinebunt augurum iuris dictio indicatio esto. Cicero’s eulogy of the ins augurum as maximum et praestantissimum in re publica is even more explicit, Quid magnificentius quam posse decernere, ~ he exclaims — nt magistratu se abdicent consules? . . . quid, legem si non iure rogata est tollere ut Titiam decreto conlegi? (de leg. 2.31). Cicero seems to intimate that the augurs simply could order the magistrates to abdicate or declare a law null and void. He expresses the same thought in still another passage (de leg. 2.31): quid enim maius est, si de iure quaerimus, quam posse . . . comitiatus et concilia . . . habita rescindere? And finally we read at de div. 2.72 (referring to the famous ‘error’ of the consul Ti. Sempronius Gracchus): At Ti. Gracchi litteris Scipio et Figulus consules, cum augures indicassent eos vitio creatos esse, magistratu se ab- dicaverunt. The verb indicassent is of special interest for it seems to imply the existence of an independent augural indicatio in matters concerning the auspicia publica. Methodologically it is an interesting problem. We have virtual agreement between an epigraphical source (the lex Ursonensis), the annalistic tradition re- presented by Livy, and the pronouncements of a well-informed augur. And yet the impression they give is utterly false. In all three cases we have to do with either imprecise or outrightly incorrect wording, hasty abridgement distorting the historical and legal reality, and finally with a large dose of wishful thinking on the part of the augur Cicero, Most instructive in this respect is the story of the vitium of Ti. Gracchus, the only vitiene affair the development of which we can follow more closely (see also above, n. 37). Ti, Gracchus, who presided over the consular elections for 162, e provincia litteras ad collegium misit, se, cum legeret libros (on the libri, see below p. 2241ff.,:recordatum esse vitio sibi tabernaculum captum fuisse . . . itaque vitio creatos consules esse. Augures rem ad senatum; senatus ut abdica- rent consules; abdicaverunt.29 The procedure is clear: the augurs establish the with decretum), the senate passed the senatus consultum urging the consuls to abdicate. Cf. also the discussion of the case by J. Jaun, Interregnum und Wabldiktacur, Kallmiinz 1970, 153-155. 38 On the terms honore (or magistratu) abire and (se) abdicare, see L. F. Janssen, Abdicatio, Diss. Amsterdam 1960, passim, esp. 25, 38, 86, 91ff. * Cic, de nat, deorum 2. 11. Pzass in his commentary ad loc. (pp. 572-578) and ad de div. 1,33 and 2.74 (pp. 149-150, 470-471) collects all source evidence and modern literature THE AUGURAL LAW 2161 occurtence of the vitinm, and report their findings to the senate. Formally the collegium plays no role beyond that point. In was within the competence of the senate (but not within the competence of the collegivm) to annul a law or to decree ut abdicarent consules. However, it still remains to explain how it was possible to ascribe to the augurs the indicatio which they apparently did not possess. As regards the lex Coloniae Iuliae Genetivae Momsen pointed to a possible analogy with the civil procedure and gave the following elegant explanation: ,,at magistratibus cum in eiusmodi ve inure auguribus obtemperandwm esset, non sine causa ipsi augures ita rem videbantur indicavisse; plane ut in causis privatis proprie praetoris indicium est summoque iure solus is cansarum index habebatur, sed cum privatum inbet sententiam ferre, vulgo is et indicasse dicitur et index appellatur.*° “The analogy with the civil procedure obtains, however, only to some degree. First of all we have to remember that the index unus was appointed by the praetor and empowered by him to issue the verdict. In this way, although a privatus, he was nevertheless partaking in the authority of the state as represented by the magistrate. But above all his verdict was not an opinion to be reconsidered by the magistrate, but the final judgement; acting on instructions from the magistrate the index unus either condemned or acquitted the defendant.*! On the other hand when the senate referred the case of a possible vitiumn to the collegium augurum, it did not delegate to the augurs the authority to rescind a law or to compel the magistrates to abdicate. But the solution of our riddle has always been at hand. There exists a text that throws bright light upon the division of competence be tween priestly colleges and the senate. Ina letter to Atticus Cicero informs his friend of the meeting of the senate concerning his house and of the participation of the pontifices in this meeting (ad Att. 4.2.4, October 57): Kal. Oct. habetur senatus frequens. adhibentur omnes pontifices qui erant senatores, a quibus Marcellinus . . . sententiam primus rogatus quaesivit quid essent in decernendo secuti. tum M. Lucullus de omnium colle- garum sententia respondit religionis indices pontifices fuisse, legis [es]se senatum; se et collegas suos de religione statuisse, in senatu de lege statuturos cum senatu. itaque sno quisque horum loco sententiam rogatus multa secundum causam nostram disputavit.* M. Terentius Varro Lucuilus (cos. 73), the spokesman for the college, desctibed the pontiffs as judges of religious questions, religionis indices. The concerning this episode, to which now add A. Magne.atn, Recherches sur I’‘imperium’ (above, n, 20), 47-48; B. Scarpicii, Grani Liciniani Reliquiae, Firenze 1983, 34~39. 4 TH, Monsen, Gesammelte Schriften 1, Berlin 1905, 249, 251. See also A. D’Ors, Epi- grafia juridica de la Espafia Romana, Madrid 1953, 188~189. 41 See the lucid presentation by W. Kunxet, An Introduction to Roman Legal and Con- stitutional History, Oxford 1973, 85~86. 42 Cf. the commentary ad loc. by D. R, SuacktsTon Bartey, Cicero’s Letters to Atticus 2, Cambridge 1965, 170-171. 1 am not sure if he is right in his interpretation of M. Lucullus’ sententia. It seems to me that Lucullus spoke twice: at first he replied in his capacity as pontifex to the question put to him by the consul-designate Cornelius Marcellinus, and then he spoke again swo loco as a senator. 2162 J. LINDERSKI colleginm pontificum had just passed the decree that Clodius’ dedication and consecration of Cicero’s house was invalid from the point of view of the pontifical law, and that the house might be restored to Cicero without sacrilege (sine religione). Whether the house should be restored to Cicero was an altogether different question. It was a question of the law, and not of the religio. It was to be decided by the senate, the judge of the law. It is important to note that on ques- tions of the law the pontiffs expressed their opinions as senators, and not as mem- bers of the colleginm. On the analogy with the pontiffs, the augurs can rightly be described as auspiciorum indices. But their iadicatio was strictly limited to the augural law; it did not immediately affect the ixs publicum, The senators were not obliged to follow the opinion of the augurs, but at the same time it was in most cases rather impossible for the senate and the magistrates to disregard the responsa of the collegium for this could have meant great peril for the stare. And so Cicero was not very far from the truth — de facto and not de iare ~ when he ascribed to the augurs the prerogative of leges tollere and comitiatus et concilia ... babita rescindere (de leg. 2.31). Of course the senate and the magistrates were not obliged to ask the augurs for advice, and it is doubtful that the augurs could institute an inquiry and interrogate witnesses without the authorization from the senate. But we can safely assume that in most cases of vitium the colleginm will have been consulted,** and numerous abdications of magistrates who were vitio creati bear testimony both to the religious watchfulness of the augurs and to their participation in political intrigues. 7. Vitiam could occur at any public action that was undertaken auspicato, i.e. after the consultation of impetrative auspices, or which could be stopped by the auspicia oblativa, It could be brought about by a mistake in the ritual or by a disregard of the auspices.*# We can distinguish three major categories of public actions that could be affected by vitiwm: a) the elections b) the legislative assemblies c) other functions of the magistrates, especially in connection with military operations. With respect to the elections the augural decree seems to have contained the phrase vitio creatum (creatos) videri,“® although it is interesting to observe 48 ‘The technical phrase was ad angures referre or deferre (Liv. 45. 12.105 Cic, Phil. 2,83). ‘The expression vocati augures (Liv, 23.31. 13) may refer to the action of the consul who in virtue of his ius vocationis ordered the augurs to convene (cf. Varro apud Gell. 13.12.65 Monmsen, Staatsrecht 1.145~146). It is probable that the full phrase was ad collegium augurum referre, cf. the expression ad colleginm pontificum referre, Cic. hat. resp. 113 Liv, 29. 19.8, 29,20. 10, 31.9.8, 38.44.5. On the augural concept of vitivm, see D. Pascwiatt, The Origin and Semantic Develop- ment of Latin Vitium, Trans. Amer. Philol. Assoc. 67, 1936, 219-231. Cf. also F. Scrto~ KNECHT, Die Bedeutungsentwicklung der Wortgruppe ,,vitium’, Diss. Miinchen, Rostock 1940, 1-68. 48 Liv, 8.15.6, 23.31.13, of. 4.7.35 Cic. de nat. deorum 2.11. THE AUGURAL LAW 2163 that the Fasti use the expression vitio facti (abdicarnnt)."6 The magistrate vitio factus or creatus was a vitiosus magistratus, but the locutions vitioszm (aliquem) pronuntiare, vitiosum (aliquem per augures) fieri, auspiciis (or nuntiatione) vitio- sum (aliquem) facere,*? are clearly non-technical, although they exactly describe the augural essence of the procedure. The magistrate became vitiosus only if a competent body (i.e. the senate, normally acting oa the basis of the augural opinion) declared him vitio creatwm, A legal rule proclaimed magistratus vitio creatus nibilo setivs magistratus,*® and he was not obliged to abdicate even if he was ordered to do so by the senate.4? But in this case all the acts of the vitiosus 46 See A, Decrasst, Fasti consulares et triumphales (= Inser. It. 13.1), Roma 1947, pp. 50~51, 462-463, referring to the consuls of 162: vitio facti abdicarunt, in eorum: lo(cum) facti sunt. . 5 pp. 4445, 440, referring to the censors of 23i: vit(io) facti abd(icaremt). Deorasst has collected full epigraphical and literary evidence on higher magistrates vitio creati, see pp. 615 (consules), 620 (trib. mil. cons. pot.), 625 (dictatores), 626 (mag. equitum), 630 (censores), and under appropriate years. On the question of vitivm with respect to plebeian officers, see Momsen, Staatsrecht, 19.365 n, 2. Liv. 8.23.14, 22.34, 11; Cic. Phil. 3.9, 5.9, of, 2.84. Varro, de ling. Lat. 6.30. The text of Varro deserves to be quoted in full: dies nefasti, per quos dies nofas fari praetorem ‘do dico addico’; itague non potest agi: necesse est aliquo uti verbo, cum lege quid peragitur. quod si tum impradens id verbum emisit ac quem manumisit, ille nibilo minus est liber, sed vitio. ut magistratus vitio creatus nibilo setins magistratus. Varto’s comparison of ‘vitiosus libertus’ with vitiosys magistratus is very instructive. The formula is the key to the world; the word creates the reality. The formula ‘do dico addico” was more powerful than the sacral division of time. The validity of election similarly depended upon the formula of renuntiatio (cf. Cic. pro Mur. 1: illo die, quo auspicato comitiis centuriatis L. Murenam consulem renuntiavi). If the formula was recited, the election was valid even if it were vitiated by a formal error or by un- favourable signs, Cf. PascriaLt, op. cit. (above, n. 44), 224 0, 23. ‘The technical formula was we magistratu se abdicent (consules), Cic. de leg. 2.34 (where bbe incorrectly ascribes it to the augural decree); de nat. deorum 2.11: augures rem ad ‘senatus, senatus ut abdicarent consules, Formally the senate only exhorted and urged the magistrates vitio creati to abdicate, but for all practical reasons this exhortation amounted vo an order. Livy, 22,33. 12, uses the verb ixbeo in this connection: iis vitio creatis inssis- que... se magistrats: abdicare (in 217). But a strong-willed magistrate was able xo defy the ‘exhortation’ of the senate and disregard the augural opinion, cf, especially the case of C, Blaminius in 223: according to Plutarch, Marc. 4.2: of 8 ént toiig trorucatig wnepo- pogiars nugapuRarrovees (todg) oiwvois iegetc drePsBarobvr0 poxOngas Kai Svodg- wOas abroig yeyovévan tas THY taco dveryooetoeis. eb8bc obv Emenwev H ObyKANTOS ani otgorixsSov yodpnota, KoActon Kui petaneunopévn tods dnézous, baw¢ én- avehOdvees {] taquota vay Ggxiy dmetnavraL, Kai undév d¢ Enaxor GAdowor eGo m9d¢ tods mohepCovs. But the consuls refused to return to the city (Plut. Mare. 4.3, and Liv. 21.63.7: consulem inauspicato factum revocantibus ex ipsa acie dis aique hominibus non paradise), defeated the Gauls and celebrated a triumph. Plutarch, Marc. 4.3, 6.1 and Zonaras 8.20.7, maintain that after their triumph Flaminius and his colleague were finally compelled to renounce the consulship, but there is no mention of their abdication in the Fasti Capitolini. Momsen, Staatsrecht 3.365, follows Plutarch and Zonaras; BrouGHron, The Magistrates of the Roman Republic 1.232, accepts the authority of the Fasti, and does not list any interregnum in 223. For a discussion of the case, see Jann, Intertegnum und Wabldikeatur (above, n. 37}, 109-111 (with further literature). 187 ANRWIT36.3 2164 J. LINDERSKI magistratus also were contaminated by the original vitiam,5° and this could have brought down calamity upon the commonwealth. “With respect to magisterial acts® augural declaration of vitivme contained the phrase vitio factum (Liv. 41.18.8) or a similar expression (vitio diem dictam, Liv. 45.12, 10). Wissowa was of the opinion that the expression vitio tabernaciulum captum referred only to an error in the taking of the auspicia impetrativa, whereas the phrases vitio creatum videri, vitio diem dictam esse, leges contra auspicia latas esse (and other expressions of a similar kind) denoted instances of ,, Unterlassung der Auspikation“ or of ,,Nichtheachtung ungiinstiger auspicia oblativa.? A glance at the sources will suffice to show that there is no ground for this distine- tion. In Liv. 4.7.3 the consular tribunes vitio creati (according to Wissowa a case of vitinm caused by the auspicia oblativa or by omission of the auspicatio) honore abiere because the magistrate who conducted their election parum recte taberna- culum cepisset (according to Wissowa this should point to an error in the auspicia impetrativa). Cicero similarly says that the consuls of 162 were vitio creati (de nat. deorum 2.11; de div. 2.74) cum (the consul Ti. Gracchus) tabernaculum vitio cepisset inprudens (de div. 1.33; de nat. deorum 2. 11). ‘The sources quoted above concern the elections, but this kind of error in the auspicatio could obviously be committed with respect to any kind of comitia (ie. also with respect to legislative assemblies) or any public act that required the ceremony of auspicatio. An important part of the ceremony was tabernaculum capere, the act by which the auspicant took possession of the hut (tabernaculum) from which he looked out for signs. It was the beginning of the actual auspicatio, and the term came to denote in the augural parlance the whole ceremony of auspication. Hence the phrase tabernaculum vitio captum could refer to any kind of vitium that occurred between the beginning of the auspicatio and the beginning of the action (e.g, unfavourable oblative auspices that disrupted the anspicatio, a mistake in the ritual or omission of the auspicatio as in the case of the consul Ti. Gracchys).55 50 Cf, Cie, de nat. deorum 2. 11: vir sapientissimus (i.e. Ti. Gracchus, cos. 163). . . peceatum swum (ie. vitium in auspicando), quod celari posset, confiteri maluit quam haerere in ve publica religionem; consules summum imperivon statim deponere quam id tenere punctum temporis contra religionem; Liv. 8.17.41 religio deinde incessit vitio eos (i.e. dictatorem et mag, ¢q, in 333) creatos magistratuque se abdicaverunt; et quia pestilentia insecuta est, velut omnibus eo vitio contactis auspiciis res ad interregnum reditt. 51 Strictly speaking also elections and comitia legum were magisterial acts, but from the point of view of the signa auguralia they formed a separate category; the fulmen, which ‘was optumum auspicium for ali public and private actions, was a vitiven for the comitia and concilia (Cie. de div. 2.43). £2 Wissowa, Augures 2334, ef. also Ip., Religion u. Kultus? 531 n. 2. 53 VaLeTON, Mnemosyne 18, 1890, 242-246. In addition to Liv. 4.7.3, and Cic. de nat. deorum 2.11, quoted above in the text, important information is provided by Serv. auct, Aen. 2.178: item in constituendo tabernaculo si primum vitio captum esset, secundum eligebatur; quod si et secundum vitio captum esset, ad primum revert mos erat. taber- nacula autem eligebantur ad captanda auspicis. PascHatt, op.cit. (above, a, 44}, 227 rn. 32, thinks that “vitio here surely refers to omens, or the lack of them, and to errors THE AUGURAL LAW 2165 The annulment of leges (and plebiscita) also presents interesting termin- ological and procedural aspects.5* Wissowa seems to admit that the formula made in the ritual. If it meant ‘error’, one would expect the magistrate merely to repeat the ceremony in the same tabernacilum instead of going to another one”, She is surely mistaken. We have to remember that unfavourable omens rendered the whole day unsuitable for che action in question; they ‘vitiated’ the day (for the expressions diem vitiare and diera tollere, see Cic. ad Att, 4.9.1, 4.17.4; ad Q. fr. 3.3.2. Cf. Cavaano, Diritto augurale 42—43). See also above, nn, 37 and 39. 54 See above all Mommsen, Staatsrecht 1,3115—116 and 3,363—368, for his magnificent theory of ,,die Wabl zwischen der Aufhebung der Consequenzen des zu Unrecht gefassten Beschlusses und der Annullirung desselben“ (3.363—364). The critique of Mommsen by A. W, Livrorr, Violence in Republican Rome, Oxford 1968, 1334f., misses the point. Monmszn applied his doctrine of the .,Aufhebung der Consequenzen des z Unrecht ge- fassten Beschlusses above all to the magistrates vitio creati (3.364). The vitiated elections were valid (cf, above, n. 48), and we know of no case of the annulment of an election. The magistrates vitio creati were listed in the fasti, and vitiated offices were included in the iterations {see Liv, 27,22. 1: consulatum inierunt M. Marcellus quintum — ut numeretur consulatus quem vitio creatus non gessit). The decree of the senate did not deprive the magistrates vitio creati of their office; it only expressed the opinion of the senate that they should abdicate, We may say that the augural and senatorial procedure aimed at removing the consequences of a vitiated election. But Mostmsen himself pointed out that it was practically impossible to apply this procedure to the leges vitio latae (3.365). ‘The only way to deal with the vitiated laws was to annul them. Lrwtorr (p. 136) states that “if a law was formally at fault... there would have been no need for annulment by the senate”, but he disregards the legal maxim that a vitiated act was nevertheless a valid act (cf. above, n. 48). And he is equally mistaken in saying that (p. 140) “it was well established that any act in defiance of the auspices was invalid and had to be performed again if necessary; so a decree by the college of augurs, possibly after reference by the senate, would have been sufficient to annul the law in practice”. A similar sentiment has recently been voiced by J. R. Fears, Princeps a Diis Electus: the Divine Election of the Emperor as a Political Concept at Rome, Rome £977, 106~107. He renders Cicero's statement legem si non iure vogata est tollere (de leg. 2.31) as “the augurs can abolish invalid laws”. Now, non ire does not mean ‘invalid’, but ‘carried in contravention of ixs’. The lex non dure rogata was a valid law; in order that it become inoperative the senate had to pass a specific decree quae lex lata esse dicatur, ea non videri populum teneri (Cic. apud Asc. in Corn. 68 C.). A decree of the augurs was not sufficient in this respect; we do not know of any law that was annulled simply by a decree of the colfege. As to the leges of the tribune Sex. Tikius, Cicero says that they were rescinded decreto collegit (de leg. 2.31), but from de leg. 2.14 we can infer that they were formally abolished, like the leges Liviae, uno versiculo senatus, Even Linrort himself thinks (p. 134) that the matter was referred to the college by the senate. The context in which Cicero makes his state- ment is very instructive, de leg. 2.31: quod (sc. religiosius) . . . legem si non iure rogata est tollere, ut Titiam decreto conlegi, ut Livias consilio Philippi consulis et auguris? Cicero both juxtaposes and places on the same legel level the decretum conlegi and the consilinm Philippi consulis et auguris. As Asconius explains (in Corn. 68-69 C.), Philippus consul » obtinuit a senatu ut leges eius (i.e. of Livius Drusus) omnes uno S.C. tollerentur, Marchus Philippus advised the senate to nullify the Livian laws, and the college of augurs advised the senate by their decree to annul the dex Titia. It is quite characteristic tha in the case of the leges Livize the college of augurs apparently passed no decree; the senate probably did not refer the question to them. It decided to act on the advice of the consul who at the same time was also a prominent augur. 137° 2166 J. LINDERSKI employed by the augurs was legem contra auspicia latam esse videri.5® Why not vitio latam ~ as one might expect on the analogy of magistrates vitto creati or Facti.56 In fact all the sources seem to speak in this context of leges contra auspicia Jatae.57 All but one. In 59, at the end of his tribunate, P. Clodius augures inter- rogabat (at a contio) quae (referring to the Julian and Vatinian laws) ia lata essent (i.e. when Bibulus “watched the sky”) rectene lata essent? illi vitio lata esse dice- bant (Cic. har. resp. 48).58 ‘This offers a clue to a proper understanding of the augural and senatorial terminology. Vitium could result from different errors, and the augurs used different formulas to describe different vitia. As we have seen, the formula vitio tabernaculum captum esse covered all kinds of vitia between the beginning of the auspication and the beginning of the action.S? But this formula could not be applied to the plebiscita for a very simple reason: the plebiscita were leges in- auspicatae cartied out without the consultation of the auspicia impetrativa, and consequently the tribunes of the plebs did not use any tabernacula. The plebiscita could be vitiated only by the oblative auspices or by the obnuntiatio. Nor did the formula tabernaculum vitio captum apply to the vitia that occurred after the beginning of the proceedings at the comitia tributa ot centuriata. But the explana- tion of the formulas lex vitio and lex contra auspicia lata must be sought in politics and not in the augural law. The lex vitio lata was a technical augural formula. It was politically neutral for the vitivm could have resulted from a simple mistake in the ritual of auspicatio.© On the other hand the expression lex contra auspicia lata was politically charged for it stressed an active distegard and contempt of the auspices*' on the part of the /ator legis. It is rather characteristic that the augurs used in their reply to Clodius’ question the neutral phrase which emphasized the fact of the vitivm but not the manner in which it was incurred, whereas Cicero thundered in his speeches against pernicious leges contra auspicia lavas. However, the formula contra auspicia seems to have also been used in senatorial 58 Wassowa, Augures 2334. 56 Cf, PascHALt, op.cit. (above, n. 44), 224 n. 23. 87 Cic. de domo 40; har, resp. 48; Vat. 5; prov. cons. 46; Phil. 3.9, 5.710, 6.3, 12.12, 13.5; Asc, 69C. £8 On vitio as the opposite of recte, see Cic. de div. 1.33 and E. Noxon, Aus altrémischen Priesterbiichern, Lund 1939, 34-37. 59 We may say that if a magistrate tabernaculum vitio cepisset, it resulued (depending upon the action for which the auspices were sought) cither in a res vitio facta, a lex vitio lata or a magistratus vitio creatus. so Or in other words, the vitivm in a law could be caused either by tabernacilum vitio captum or by oblative omens that occurred during the proceedings of the assembly. 61 There is, however, one exception to this usage, Cic. ad. Q. fr. 2.2.1: Nai, wt ille Gracchus angur . .. recordatus est quid sibi in campo Martio comitia consulum babenti coniva auspicia accidisset, Cicero here refers to the sudden death of the primus rogator, which the haruspices interpreted as pointing to Gracchus not being the iustus comitiorum royator. As it tatned out they were right, for Gracchus had committed a technical error Which rendered his auspices invalid (see Cic. de nat, deorum 2.11, and above, n. 39). As a result he conducted the consular election inanspicato, and only unwittingly contra auspicia. THE AUGURAL LAW 2167 decrees, cf. Asconius 68~69 C. with reference to the leges Liviae of 91: Itaque Philippus cos... . . obtinuit a senatu ut leges eius (i.e. Livii Drusi) omnes uno S.C. tollerentur. Decretum est enim contra auspicia esse latas neque eis teneri populum. If Asconius’ wording correctly reflects the senatorial terminology, then augural language was also in this case (as in many others) much more archaic than the language of senatorial and magisterial politics and procedure. The phrase lex contra auspicia lata was used in the later republican period with respect to the laws or plebiscita which were passed in defiance of a) the unfavourable anspicia oblativa which actually occurred during the proceed- ings (c.g. ominous birds, lightning, thunder, storm, hail b) the obnuntiatio by a magistrate or a tribune (which had to be made before the beginning of the proceedings) Cf. Obs. 46 concerning the lex Titia of 99 (which according to Cicero, de leg. 2.31, was annulled decreto conlegi): Sex. [Tiftins tribunus plebis de agris dividendis populo cum repugnantibus collegis pertinaciter legem ferret, corvi duo numero in alto volantes ita pugnaverunt supra contionem, ut rostris unguibusque lacerarentur. aruspices sacra Apollini litanda et de lege, quae ferebatur, supersedendum pronuntiarunt. On the raven as a bird of prodigy and an augural bird, see Pease, de div. pp. 75~-76, and the literature quoted by him. We first have here a responsum of the haraspices who interpret the fighting ravens as a pradigium and propose a procuratios then the augurs are called in (as we know from Cicero), and they corroborate the opinion of che haruspices interpreting the occurrence as a vitize; and finally on the recommendation of the college the senate invalidates the lex Titia, Cf. above, n. 54, and E. J. Wetnrts, Obnuntiatio: Two Problems, Zeitschr. d. Savigny-Seiftung f. Rechtsgesch. 87, 1970, 398 n. 13. G. Nocera, Il potere dei comizi i suoi limiti, Milano 1940, 238, erroneously speaks of the obnuntiatio by the haruspices. ‘The same error in Bueicsen, Lex Publica @bove, n. 20), 465. He also maintains that the law of Titins ,,gegen ein Dekret der Auguren . . . beantragt worden war". But the decree of the augurs was subsequent to the passage of the law, and hence Titius could not dis- regard it, The phantom of the obmuntiatio of the haraspices seems to go back at least to G. Roronpr, Leges Publicae Populi Romani, Milano 1912 (reprint Hildesheim 1962), 333. The lex agraria of Appuleius Saturninus was passed yevonéyng év éxkhnoia Beovtiic, App. Bell. civ. 1.133, cf. 136; Linvorr, Violence (above, n. 54) 134, 136. Auct. de vir. ill. 73.7 records an interesting anecdote concerning this law: Huic legi multi nobiles obrogantes [obnuntiantes?], cum tonuisset clamarunt: iam, inguit (sc. Saturninus), nisi quiescetis, grandinabit, Satarninus’ jest was not only “a veiled threat of a lapidatio” (Lan- torr, Violence 136 n. 3), but also a pun upon an augural rule: ‘xitiwm’ emim est, si toner tantum, ‘uitium et calamitas’ wero, si tonet et grandinet simul uel etiam fulminet (Donst. Comm. Terent., Hecyra 2, p. 193 Wesswer). Also the lex Antonia Cornelia agraria (for this denomination, see W. Srernxopr, Lex Antonia agraria, Hermes 47, 1912, 146-151) was passed contra auspicia, cf. Cic. Phil. 5.8: Quae porvo illa tonitrua, quae tempestas « quam legem igitur se augur dicit tulisse non modo tonante love, sed prope caclesti clamore prohibente, hanc dubitabit contra auspicia latam confiteri? 8. Wexnstock, Clodius and the lex Aelia Fufia, Journ. Rom, Stud. 27, 1937, 221-222, thinks that L. Antonius (Wemsrock ignores Sterwxorr’s article; L. Antonius was not the lator of the law) disregarded on this occasion an obnuntiatic. This is quite unwarranted. Cicero refers to a real storm, and not to a report of an omen. Cicero and the anti-Caesarian faction maintained that the leges Juliae and Vatiniae (in- cluding the lex curiata de arrogatione Clodii) were passed contra auspicia because of the obnuntiationes (or more exactly, servationes de caelo, cf. J. LinpeRsxt, Constitutional 8 2168 J. LINDERSKI ¢) the nuntiatio by an augur® (which lrad to be announced during the proceedings of an assembly). 8. ‘Two cases of vitium at the elections from the middie and early republic give us interesting insight into what the annalists thought or knew of the augural procedure and augural theory of vitivm. In 215 C. Claudius Marcellus was elected a suffect consul and extemplo magistratum occiperet. Cui ineunti consulatum cum tonuisset, vocati augures vitio creatum videri pronuntiaverunt; volgoque patres ita fama ferebant, quod tum primum dio plebeii consules facti essent, id deis cordi non esse. In locum Marcelli, ubi is se magistratn abdicavit, suffectus Q. Fabius Maximus tertium (Liv. 23,31. 13-14). In order to round off the picture it is important to note that at the next consular elections (which were presided over by Fabius) the consuls elected were Fabius himself and Marcellus.®* "The explanations offered by prosopographers ignore the augural side of the question. Ménzer®? thinks that the real reason for invalidation of the election was the wish to prevent the situation in which two plebeian consuls would for the first time hold simultaneously the consulship. Fabius, who was the most influential member of the augural college (to which, by the way, also Marcellus belonged), caused“ the augurs to pass the decree of which he himself was to be the main beneficiary. However, in view of the subsequent election of Marcellus under Fabius’ presidency to the consulship of 214, when Fabius set aside two other consular candidates who had originally been returned by the centuria praerogativa, ,,das Ganze war ein abgemachtes Spiel. It is not clear to me if this also refers to Marcellus’ election and abdication in 215, but ScuLarp harbors no doubts. Marcellus was an ally of the Fabii, and “the election and withdrawal of Marcellus may even have been staged by him and Fabius in order to moderate the ambitions of the people, and the unprecedented election of two plebeian consuls have been encouraged merely in order that the patricians could publicly voice disapproval and by augural procedure force a plebeian consul to abdicate to make room, with an appearance of reluctance, for a patrician’””.6° Cassoia also thinks that Marcellus was probably an adherent of Fabius, but his reconstruction is less Machiavellian than ScuLLarn’s. Fabius had nothing to do with the augural Aspects of the Consular Elections in 59 B.C., Historia 14, 1965, 425-426) of Bibulus and. of three tribunes, see Cic, de domo 40; de har. resp. 485 de prov. cons, 46; Suet, Nero 2,2. 8 On obnuntiatio and nuntiatio in general, see I. O. M. Vatevon, De iure obnuntiandi comitiis et conciliis, Mnemosyne, 19, 1891, 75-113, 229-270. As a matter of fact we do not have any example of a law which was annulled because it had been passed in defiance of the augural numtiatio. On the other hand Dolabella was elected consul in 44 despite the obnuntiatio of Antonius in his capacity as augur, Cic. Phil. 2.79~84. On the Ides of March Caesar was to discuss this question in the senate, Phil, 2,88. 66 Liv. 24.7, 10-24.9.4. SF, Méwzer, Rémische Adelsparteien und Adelsfamilien, Stuttgart 1920, 74. 6® Mize and other scholars as well do not pay atiention to the fact that the augurs were ‘ocati, no doubt by the consul Sempronius Gracchus, cf, above, n. 43. 69 Hl. H. Scurtarp, Roman Politics 250—150 B.C.2, Oxford 1973, 57-58. THE AUGURAL LAW 2169 decree; it was carried through by some unspecified foes of Marcellus in the augural college.” For Lppon, Fabius again was the prime mover in bringing about the abdication of Marcellus, Bur Lirpop’s Fabius was much more practical; decisive were for him hard realities of war. Marcellus’ consulship simply did not fit into Fabius’ strategic schemes and ideas.7! If so, he must have changed his mind pretty soon, still in time to help Marcellus to his third consulship, The only sure facts we do have are Marcellus’ abdication as vitio creatus in 215, his election to the consulship for 214, and Fabius’ suffect consulship in 215 and ordinary consulship in 214, Now let us look more closely at the constitutional and augural aspects of the affair. First of all it is important to remember that the electoral proceedings were completed, and that the election was valid. Marcellus’ consulship quem vitio creatus non gessit counted as his second consulate and was listed in the Fasti.7? ‘This means that the consul Ti, Sempronius Gracchus who presided over the comitia (again a Gracchus involved in a case of vitium!) must have received (or thought he had received) favourable signs when he auspicated on the morning of the election day. Furthermore no bad omens seem to have occurred during the proceedings of the assembly; no thunderclap was heard at that time. As it was the election for a suffect consulship, it was held after the beginning of the consular year, and consequently Marcellus extemplo (i.e. immediately after his ceremonial renuntiatio as consul) magistratum occiperet. Now, in which way did a Roman magistrate ‘take’ (occipio), or enter upon (ineo), office? He did it by performing his first magisterial act, the taking of impetrative auspices. The question he addressed to Jupiter did not concern his own person, his investiture, as some eminent scholars would like to have it,”! but the validity of his auspices.”4 In this way he tried to activate the auspices he had passively received through the ceremony of renuntiatio, and which ultimately derived from the auspices given by Jupiter to the president of the electoral assembly, The new magistrate asked Jupiter if it was fas to use these auspices. In the case of Marcellus Jupiter's answer was a clear no. Mowzer, Lirroip and Cassoia’S seem to suspect that the augurs applied to this thunder some special anti-Marcellan or anti-plebeian interpretation. So we have now to consider the augural nature of thunder, Lightning (fubmen) was a prohibitive sign for the holding of all popular assembles, but it was precisely lightning, the fulmen siniserum, that in its capacity as auspicium maximum was 7 F, Cassota, I gruppi politici romani nel IM secolo a.C., Trieste 1962, 316~317. 7. A. Lipeozp, Consules (Antiquitas I 8), Bonn 1963, 169~171, 383, 7 Liv. 24.9.3, 27.22.13 Deorasst, Inscr, It, 13.1, p. 446. 7 Mommsan, Staatsrecht 1,380—81, 609; Macoetamy, Recherches sur Imperium’ (above, n. 20), 36-40. % The magistrate is not taking the right to the auspices (so Macpetain); by putting the question to Jupiter he is already taking the auspices. I shall discuss the theory of magis- terial investivure in another places here I should like to point out that the case of Marcellus (which Macnerany does not discuss) strongly militaves against his thesis. 78 Minzer, Fabius 116, RE 6, 1909, 1823; Lreroup, op. cit. (above, n. 71), 170; Cassona, op. cit. (above, n. 70), 316. 2170 J. LINDERSKI inopetrated by the magistrate entering upon office.76 What was the situation with respect to thunder? It was along with fulmen an unpropitious sign for popular assemblies; [ove tonante, fulgurante comitia populi habere nefas, stated an augural rule,7? In also was unfavourable for marriage ceremonies, Serv, auct. Aen, 4.339: cum fuissent inncti, scirent tonuisse: quae res dirimit confarreationes. ~ Dirimere was frequently used with respect to the omina vitiating the auspices, as in Serv. auct. Aen. 4.161: murmur autem caeli ad infaustum omen pertinet, quia tonitru dirimuntur auspicia.? So everything seems clear; thunder was an omen i fausturn,7? and there was no anti-Marcellan aagural conspiracy, But there is a di ficulty, The augurs regatded thunder on the left (i.e., as shown by VaLETON,®° coming from the east) as an excellent sign, Cic. de div. 2.82: ad nostri auguri consuetudinem dicit Ennins (Ann, 527V.): Tum tonuit laevum bene tempestate serena.51 Two interpretations are possible: either thunder was generally regarded as an unfavourable sign for magistrates entering upon office’ or the augurs distinguished between thunder and lightaing from the east (positive), and thunder and lightning from other regions of the sky (negative). Numerous examples col- lected by VALETON leave no doubt that the farter is the right interpretation.5* Was it then thunder that rendered Marcellus’ election invalid? By no means. ‘The election had already been completed, and consequently the thunder which was heard when Marcellus was entering upon office must have had a different significance. A parallel case will be of help. When in 163 at the consular elections the primus rogator suddenly died, his death was not immediately a vitium for the comitia, but rather a prodigium of unclear meaning. But as it turned out, this prodigium was the means the deity used to point to an already existing vitivm, namely the fact that the presiding consul was not a iustus comitiorum rogator.** ‘Also in the case of Marcellus the murmur caeli merely called attention to the fact 7% Dion. Hal, 2.5.12, 2.6.1~2; Momsen, Staatsrecht 1.979~81, 77 Cig. de div. 2.42, who quotes from nostri commentarii. Pease ad loc., p. 424—425, collects parallel passages. 78 Ci. A. S. Pease, Publi Vergili Maronis Aeneidos liber quartus, Cambridge (Mass.) 1935, ad 160, p. 202; L. Banpini Moscapt, ‘Murmur’ nella terminologia magica, Studi Ital. Fil, Clas, 48, 1976, 254-262 (however, she does not discuss murmur as an auspicivin infaustum). 19 Cf also Suet, Tit. 10.1 (referring to omens which preceded the death of Titus): Sabinos petit aliquanto tristior, quod sacrficaxti hostia anfugerat quodgue tempestate serena ronuerat; Mace. Sat. 1.16.8: item flaminica quotiens tonitrua audisset feriata erat donec placasset deos. 30 ‘Varsron, Mnemosyne 17, 1889, 296-299. 83 For numerous parallels, sce Pzass ad loc., pp. 482-483; Vateron, loc. cit. esp. 298 n. 2. 82 So Momasen, Staatsrecht, 1.980 n. 2, 6 Vaueron, Mnemosyne, 17, 1889, 288-299. See esp. Plin, nat. hist, 2, 142: laeua fulgera prospera existimantur, quoniam laeva parte mundi ortus est; Atnob. adv. gent. 4.5: dei Taeut et laevae, sinistrarum regionum praesides et inimici partium dextrarum (i.e. occidentalinn), Consequently, lightning or thunder from the west was especially un- favourable. 8 Cic. de nat, deor, 2,11, and above, n. 61. THE AUGURAL LAW 2171 that Marcellus was not a rite creatus consul; Jupiter by sending his thunder (ap- parently from the west) protested against the vitiosus consul. There is no difficulty in answering the question what kind of vitinm Mar- cellus incurred, for Livy had it already answered. This time vitinm did not result from a mistake in the ritual or from an ominous sign; it was the ritual un- suitability of Marcellus as a plebeian that vitinm fecit. Such was at least the augural interpretation. Taking as our starting point the solid augural and constitutional basis, we can now try to reconstruct the fleeting political circumstances of Marcellus’ election and abdication. It is important to bear in mind that Marcellus made an attempt at 2 major constitutional innovation; the election of two plebeian consuls would have set a precedent for the future, which in the long run would have significantly diminished the electoral chances of patrician candidates. Marcellus enjoyed, however, considerable support both among the people and in the senate, and his opponents did not succeed in stopping him. Most characteristically the augurs were not called in by the senate to decide whether it was a religio to have simultaneously two plebeian consuls. The consul ‘Ti. Sempronius Gracchus, who, as Livy intimates, at first tied to temporize, finally convened the comitia, and Marcellus was elected ingenti consensu.*5 From this point on two scenarios are possible depending upon whether we accept that thunder was really heard or only reported to have been heard (which from the augural point of view amounted to the same thing, but was not at all the same thing as far as politics was concerned). If the thunder was real, and not only faked, it quite unexpectedly provided the conservatives with an excellent opportunity to challenge the validity of Marcellus’ election. Such an omen could hardly be disregarded, especially in times of national calamity, in an atmosphere of triumphant superstition and religiosity.6° But what makes one patise, is the perfect timing of the chunder. Had it occurred earlier, during the proceeding of the assembly, its effect would have been quite modest. Ie would merely have vitiated the avspicivm illius diei; the presiding consul would have had to dismiss the assembly®” ~ in order to convene it again on one of the following comitial days. By this move Marcellus’ opponents would not have gained much. And there is another remarkable fact: as far as 1 know this is the only example of an adverse omen occurring at the time of a magistrate’s entry upon office. 85 Liv. 23.31.7—13; Plus. Marc. 12.1 86 See I, Miiuer-Serbuz, Q. Fabius Maximus Cunctator und die Consulwahlen der Jahre 214 und 215 v. Chr., Rhein. Mus. 96, 1953, 241-249. R. Daven, Religion and Politics at Rome during the Third Century B.C., Journal of Religious History 10, 1978, 3-19, esp. 1417. He argues (p. 17) thae “Antipathetic factions and religious manipulation ia the third century are the constructions of blinkered approaches which fail to take into consideration the religious mores of the simes”, but he himself failed to discuss the augural technicalities of Marcellus’ abdication. This prevented him from fully appreciating the long-term constitutional consequences both of Marcellus” election and his abdication. 8 Cf. Liv, 40.59.5; 30.39.5: saepe comnitia indicta perfici tempestates probibuerunt; Cass. Dio 38.13.43, 2172 J. LINDERSKI When the consul Sempronius Gracchus received the report of the thunder- clap, he referred the question (no doubt, on the recommendation of the senate) to the college of augurs. When the augurs declared that Marcellus was vitio creatus, the game was over, and Marcellus stepped down.® The recent example of Flaminius who disregarded the auspices, and perished with his army,*? made it impossible to defy the augural verdict.°° But, since Marcellus was not long afterwards elected to the consulship for 214, it is obvious that at issue was not his personal candidacy but a broader constitutional question. ‘The first plebeian college of consuls appears in the Fasti in 172.°t Thus a solitary thunderclap in 215, be it a real occurrence or a fake, determined the shape of Roman elections for almost half a century. Under the year 327 Livy has the following story (8.23. 14-16): Nec tamen ab dictatore (i.e. dictatore comitiorum habendorum causa C. Claudio Marcello) comitia sunt habita, quia vitione creatus esset in disquisitionem venit. Consulti augures vitiosum videri dictatorem pronuntiaverunt. Eam rem tribuni suspectam infamemgue criminando fecerunt: nam neque facile fuisse id vitium nosci, cum consul oriens de nocte silentio diceret dictatorem, neque ab consule cuiquam publice privatimve de ea re scriptum esse nec quemquam mortalium extare qui se vidisse aut audisse quid dicat quod auspicium dirimeret, neque augures divinare Romae sedentes potuisse quid in castris consuli vitii obvenisset; cui non apparere, quod plebeius dictator sit, id vitium auguribus visum? Minzer® suspects that the story was patterned after the case of Claudius Marcellus in 215; indeed the similarities are striking. In both cases we have an intrigue of the patricians and the augurs against the plebeians and in particular against a Claudius Marcellus. In 215 Marcellus was elected suffect consul after the death of L. Postumius who was killed in battle; in 327 Marcellus’ ancestor appointed as his master of the horse a Sp. Postumius. Janmn’s defense of the historicity of the episode is not convincing.°3 We here have an excellent specimen of the augural lore of the annalists. If Livy’s source was a bad historian, he was an expert in augural language. In this short passage we encounter at least half a ®8 Plutarch, Mare. 12.1, says that tGv Leggeov odk aloov Wepéviev rd onpetov, Eumpavi 8b K@hOeLW SxvoovEaY Kal SediStav wy Siwov (this is not correct; Livy clearly speaks of vocati augures and of their responsum), crbrds EEwpdoaro thy dowiy (his will probably refer to Marcellus’ abdication in anticipation of the decree of the senate). 8° Gf. Fabius’ opinion of Flaminius, Liv, 22.9.7: plus neglegentia cuerimoniarum auspici- orumque quam temeritate atque inscitia peccatum a C. Flaminio consule esse. ‘Marcellus, although augur optimus, had a pragmatic attitude to the auspices. As imperator he did not pay attention to the auspicia ex acuminibus, and in order not to be prevented from action by adverse omens he had himself carried in a closed litter, Cie. de div. 2.77. But in order to keep things in proper perspective it is worth noting that Cicero also attributes similar pragmatism to Fabius, Fabius did not hesitate to maintain that “whatever ‘was done in the interests of the state was done under the best auspices, and whatever was inimical to the state was against the auspices” (Cie. de senectute 11). °1 BroucHton, MRR 1.410. 9 Claudius 218, RE 3, 1899, 2737~-2738. 88 J. Jasin, Interregnum und Wahldikratur, Kallminz 1979, 88-89. THE AUGURAL LAW 2173 dozen technical augural expressions and references to augural procedure.% T quote this passage for it points to a need for the study of augural lore in individual Latin and Greek authors, especially as a historical, rhetorical and stylistic device. 9. Vitiva at the elections was a setious question, but the consequences of vitivm committed in the course of military operations were more spectacular. The case of Flaminius is well known, but I have selected for our discussion a much less advertised affair, and of little historical importance, but quite interest- ing from the augural point of view. Vitinm may be the cause of great calamities and of small discomfitures; what makes it interesting is the circumstances. In his description of a Ligurian campaign Livy also gives us a detailed story of a vitinm in auspicio and of its consequences, The text reads as follows (41.18. 7-8): Tum sortiti (the consuls of 176 Q. Petilius Spurinus and C. Valerius % A few terminological notes on the augural content of the passage: a) vitium, vitio creatus and vitiosum dictatorem pronuntiaverunt, cf. above nn. 44~47, It is worth noting that Livy uses the phrase augures pronuntiaverunt only twice, in this place and with respect to the abdication of C. Marcellus in 215 (23.31.13) — a strange coincidence indeed; b) con- sulti angures, see above, p. 2139.5 ¢) consul oriens de nocte silentio diceret dictatorem, a technical augural phrase, cf. Velius Longus, de orthogr., Gramm. Lat. 7.74 Kua: Oriens consul magistrum populi dicat; Mommsen, Staatstecht 2.151152, This is the only occur- tence of the expression de nocte in Livy. ‘The auspices were taken between midnight and dawn, i.e. zocte, cf. Momsen, Staatsrecht, 1,2101~102. For oriri = surgere, sce Festus 194-195 L., and ef. 474 L. silentio surgere; d) silentium, a well-known augural concept, see Festus loc.cit., Liv. 10,40.2, Cic. de div. 1,72, and Psase ad loc. with further refer- ences; ¢} auspicium dirimere, another augural phrase, cf. Plin. nat. hist, 8.223, Serv. auct. ‘Aen. 4.161. The auspicivm could be disrupted either by something heard (e.g. occentus soricum, Plin. foc. cit.) or seen (e.g. ax unfavourable bird, e.g. a bubo or a noctua). Jars, op.cit. (above, n. 93}, 88 a. 122, compares Cic, Phil. 2.83~84: ‘Alio die” inguit . .. quid videras, quid senseras, quid andieras?, f) quid . . . vitii obvenisset, of. Cic, de div. 2.77, and esp. Phil. 2.83: id igitur obvenit vitinm. The augurs used the prefix ob- with special predilection, cf. P. Recent, Auguralia, in: Commentationes Philologae in honorem Aug. Reifferscheidii, Vratislaviae 1884, 61~62; A, TsuzrreLper, Obscaenus, in: Navicula Chiloniensis. Stadia philologica F. Jacoby oblata, Leiden 1956, 98-106; g) angures Romae sedentes. Sedeo is an augural word, cf. Serv. Aen. 9.4: secundum angures sedere est augirium captare; Fest. 474,10 L., Sch. Ver. Aen. 10,241. ‘The intervention of the tribunes bears a striking resemblance to a similar case in 217, Liv, 22.33.12: iis (i.e, diceatore comitiorum babendorum causa et magistro equitum) vitio creatis inssisque die quarto decimo se magistrats abdicare, ad interregnum res rediit, The senate obviously ordered the abdication of the dictazor on the basis of an augural opinion, for at 22.34.3 a tribune of the plebs criticized (criminando, cf. tribuni . . . criminando in the passage under discussion) non senatun modo, sed etiam augures, quod dictatorem prohibuissent comitia perficere, and further 22.34.10: quia invitis iis (sc. consulibus) dictator esset dictus comitiorum causa, expugnatum esse ut vitiosus dictator per augures fieret. Jann, op. cit. (above, n. 93) thinks that the erguments of the tribunes ,,seien einem augur Handbuch entnommen", and F. Sint, A proposito del carattere teligioso def “dictatos’, Studia Docum. Hist. et Tur. 42, 1976, 421, concludes (solely on the basis of the term silentio) that the text derives .,da una fonte augurale“, Now it is obvious that the annalist who was the source of Livy was extremely well versed in augural terminology, but this does not prove the historicity of the episode itself. | | | | 2174 J. LINDERSKI Laevinus), quia non ab eadem utrumque parte adgredi hostem placebat, regiones quas peterent. Valerium auspicato sortitum constabat, quod in templo fuisset; in Petilio id vitio® factum postea augures responderunt, quod extra templum sortem in sitellam} in templum latam foris oporteret. Let us look first at the augural decree (augures responderunt). It con- tained a statement of fact (constabat, vitio factum) followed by an explanation. Unfortunately the second guod-sentence summarizing the augural analysis of the vitium committed by Petilius is corrupt, and it is not clear in what Petilius’ vitivm exactly consisted.°° We can, however, infer that the sortitiones had to take place ina templum. In urbe it would of course be a locus inanguratus; in our case the term templum denotes the praetorium of the commander and the place in front of it, where the commander sacrificed, and where the exta were inspected. In this place also the auspicia ex tripudiis were observed, the tent of the dux being employed as the tabernaculum augurale.°” Hence the praetorium (and the locus before it) is often referred to as angurale,°* auguratorium,® 6 vets (or 1 teQov) rob otgatonédov. 1° As aresult of his error Petilius dum incautius' ! ante signa obversatur, miss traiectus cecidit (Liv. 41.18.11), but the Romans scored an impressive victory. ‘The senate ordered an investigation, and, as there were rumors about Petilius’ improprieties with respect to the auspices, the augurs were called in (that they did not act on their own initiative is clearly indicated by the verb responderunt). ‘They questioned the attendant of the sacred chickens and discovered that the °5 Mapvres’s conjecture vitti (accepted by Werssensorn~Miiiter) is unnecessary. To disprove it, it is enough to cast a glance at Packar’s ‘Concordance to Livy’, Cambridge (Mass.) 1968, Livy exclusively uses the phrase with vitio. 96 Cf. the explanation given by VaLeron, Mnemosyne 23, 1895, 62 n. 4. Cf. also J. Rvamo, Untersuchungen iiber rémische Verfassung und Geschichte, Kasse] 1839, 92 n. 2. For a list of conjectures, see C, Giarravano, Titi Livi ab urbe condita libri XLI~XLV, Romae 1933, 40 (in app. crit, ad loc,); P. Jat, Tite-Live, tome 31, livres 41-42 (Coll. G, Budé), Paris 197i, 152. Neither of them records the study of Vatsron. 57 H. Nissen, Das Templum, Berlin 1869, 46; Vatevow, Mnemosyne 23, 1895, 61-64, with a derailed discussion and a collection of sources. See above all Sch, Ver. Aen. 10.241: Ut in exercitu [prius quam acies instrucretur, is penes quelm impferium auspicifumaque erat, in tabernaculo in sella [se]dens auspicabatur, coram enercitu pullis e cavea liberatis. $8 Quintil. Inst. or. 8.2.8, tabernacilum ducis = augurale; Tac. Ann. 2.13.1, 15.30.1. °° Fyginus, de munis. castrorum (ed. A. von Domaszewsx1, Leipzig 1887) 11: Aris institutis in foro partis imae auguratorium parte dextra practorii ad viam principalem a[dsi]gnabimus, ut dux in eo angurium recte capere possit; parce laeva tribunal statiituer, ut augurio accepto insuper ascendat et exercitum felici auspicio adloquatur. Ci. v. Domascewsss ad loc,, pp. 54~35, In republican times the auspicia pullaria seem to have been taken immediately in front of the praetorium, cf. Sch. Ver. Aen. 10.241 (above, n. 97}, and v. DoMaszEwskr, Auguratorium 2, RE 2, 1896, 2313. 100 Herod. 4.5.1, 5.8.6-7. 101 The term incautus carries a strong pejorative meaning (for Livy’s usage, see PackarD, Concordance s.v.). An incautus imperator has obviously lost his felicitas (which depended so closely upon his auspices). Cf. W. Seyrarti, Miles cautus, in: Miscellanea critica. ‘Aus Anlass des 150jéhrigen Bestchens d. Verlagsgesellschaft B. G. Teubner, vol, 2, Leipzig 1965, 334-336. THE AUGURAL LAW 2175 consul had disregarded a vitium in auspicio: super tam evidentem tristis ominis eventum etiam ex pullario auditum est vitium in auspicio fuisse, nec id consulem ignorasse (Liv, 41.18.14). The vitivm here mentioned probably refers to the taking of the auspices ex tripudiis before the battle, and not to auspication before sortition, as postulated by Mommsen but otherwise unattested. 0? But it is also possible that by the vitixm in auspicio nothing else is meant but the previously discussed vitium in sortitione, the drawing of lots being a kind of augury through which Jupiter expressed his will. The responsum of the augurs may have also included the story of the ominous words pronounced by Petilius before the battle, Liv. 41.18.9-10: Petilius adversus ... Leti ingum ... castra habuit. ibi adbortantem eum pro contione milites, immemorem ambiguitatis verbi, ominatum ferunt se eo die Letum capturum esse,1°3 Now, it is certainly interesting that despite vitiated auspices the Romans won the battle, and suffered only light casualties. The augurs had certainly no difficulty in finding a coherent explanation, First of all, the Romans captured the Leti iugum only after the death of the consul, The wrath of the gods descended upon the guilty general, and it could be argued that it was eo ipso averted from his soldiers. 1° The death of Petilius did not immediately result from his vitium, but it was rather the punishment for his having knowingly ignored it. This course of events had already been prefigured by the consul’s ominous utterance.?5 By stating ,,hodie ego Letwm utique capiam (Val. Max. 1.5.9), he had unwittingly drawn down the wrath of Jupiter upon himself, but he had saved his army. Had he said ,,hodie nos Letum utique capiamus“, an Appius Claudius might have argued that nothing could have prevented a major debacle. And consequently if Petilius had addressed his soldiers ,,hodie vos Letum utique capiatis“, he would naturally have survived the disaster to face the senatorial and augural investiga~ tors, 106 102 Momsen, Staatsrecht 1.996 n, 4, 103 n. 1, Cf, Carazano, Diritto augurale 279-280. Mommsen confuses in his discussion the two concepts of templum, i.e. iemplim as locus inauguratus and as field of observation. 403 Bor the expression /etum (= mortem) capere, of. E, Durorr, Le souci érymologique chez ‘Tite-Live, in: Hommages M. Niedermann (Coll. Latomus 23), Bruxelles 1956, 110, who compares the epigramma of Plautus, Gell. 1.24.3: postquam est mortem aptus Plantus, where apiscor has a sense very close to that of cap 104 CE Liv. 8.30.1: In Samnium incertis itum auspiciis est; cuius rei vithwn non in belli eventum, quod prospere gestum est, sed in rabiem atque iras imperatorum vertit. 105 On the theory of prefiguration, see J. Bayer, Présages figuratifs déterminants dans Pantiquité gréco-latine, in: Mélanges F. Cumont (Annuaire de PInstivut de Philol. et @Hist. Orientales et Slaves 4), 1936, 27~51 (reprinted in: J. Bayer, Croyances et rites dans la Rome antique, Paris 1971, 44-63); Ip., La croyance romaine aux présages déter~ minants: aspects liteéraires et chronologie, in: Hommages J. Bidez et F, Cumont (Coll. Latomus 2), Bruxelles 1949, 13~30 (reprinted ibidem, 73-88). 106 Valerius Maximus 2.7.15 reports that greviter senatus tulit quod Q. Petilium consulem fortissime adversus Ligures pugnantem occidere milites passi escent. legioni neque stipen- sem anni procedere neque aera dari voluit (cf. Front. Surat. 4.1.46). There is a dis- crepancy between this account and the account in Livy. It is, however, unlikely that the 2176 J. LINDERSRI The cause célébre of P, Claudius Pulcher in 249 well illustrates the fate that awaited the general who defied the auspices but was unfortunate enough to survive the catastrophe of his army. When the sacred chickens refused to eat Claudius reportedly exclaimed “if they don’t like to eat, let them drink”, and had them thrown into the sea.1°7 As a result he sailed contra auspicia or vitio.1°8 "The gods promptly punished the arrogant Claudius, and he lost most of his fleet at Drepanum. We do not hear anything about an augural investigation, but it certainly must have taken place. In any case two tribunes*® accused Claudius of perduellio,° but when comitia eius rei fierent et centuriae intro ducerentur, senate would have rejected the report of the augurs which squarely laid the blame on the shoulders of Petifius. In another place (1.5.9) Valerius Maximus says that the consul fought inconsideratius, and this expression parallels Livy’s incautins. It seems it is not impossible to reconcile Livy and Valerius. Petilius perished when he bravely swos ¢ fuga revocavit (Liv. 41.18.11); the gods punished Petilius for his disregard of auspices, and the senate by withholding the stipendiwm punished the soldiers for their initial flight. 107 Zor a collection and analysis of sources, see Mtinzur, Claudius 304, RE 3, 1899, 2857— 2858, Claudius’ colleague in the consulship, L. Iunius Pullus, allegedly also disregarded the auspices, suffered a naval catastrophe, and committed suicide in order to escape the accusation. This is most improbable. The story seems to have been spun out from his cognomen Pullus, but Hirscwrenn’s idea (Kleine Schriften, Berlin 1913, 776 n. 1) that it was only secondarily transferred to P. Claudius, is very unlikely. Our sources (includ- ing Polybius) report details concerning the trial of Claudius (see below, nn. 109~111), but apparently they did not know anything about a trial of Iunius, and so he had to be removed through the device of suicide, See Minzer, Iunius 133, RE 10, 1, 1918, 1080~ 1081; cf, also Pease ad Cic. de div. 1.29, p. 136, 108 Cic, de div. 1.29 and 2.71. 309 According wo Sch. Bob, 99 SranGt, the name of one of them was Pullius. Another allusion to the sacred pulli? It is not impossible that Pullius was not his gentiliciem but rather cognomen which he was given on account of his prosecution of Claudius. The scholiast may have split up one person, Fundanius Pullius (or Pullus), cf., however, BROUGHTON, MRR 1.215; J. Busicxen, Das Volkstribunat der klassischen Republik? (Zetemata 13), Miinchen 1968, 36 n. 1. 149 Sch. Bob, 90 SrancL: dies ei dicta est perduellionis, Cf, Momsen, Rémisches Strafrecht, Leipzig 1899, 170 n. 5, 588 n. 3; Cu. Brecur, Perduellio (Miinchener Beitr. z. Papyr. u, ant. Rechtsgesch. 29), Miinchen 1938, 287~288. Their treatment of the question is unsatisfactory. They are exclusively concerned with legal aspects of the trial, and lose sight of its augural dimension. Claudius was not accused of perdellio because he lightheartedly lost a fleet; he was accused of contempt of auspices, a behavior which ultimately resulted in a disastrous defeat of his fleet, Cicero states this clearly, de div. 2.71: Nec vero non omni supplicio digni P. Claudius L. Iunius consules, qui contra auspicia navigaverunt . inre igitur alter populi iudicio damnatus est, alter mortem sibi ipsi conscivit. And at de div. 1.29 he writes: Jtaque sinistra (i.e. fausta, laeta, prospera) dum non exquirimus in dira et in vitiosa incurrimus. Ut P. Clandius ... eiusgute collega L. Iunius classis maxumas perdiderunt, cum vitio navigassent. The expression in dira et vitiosa incurrimus is characteristic for it calls to mind Cicero’s ‘lex’ at de leg. 2.21: quacque angur iniusta nefasta vitiosa dira deixerit, inrita infectaque sunto, quique non paruerit, capital esto. In this passage Cicero speaks of the eugural nuntiatio (cf. Mommsen, Staatsrecht 1.2116 1.2), but disregard of the auspices which actually resulted in dira et vitiosa had the same augural effect as disregard of the nuntiatio of dirae made by an augur. THE AUGURAL LAW 2177 tempestas turbida coorta est: vitium intercessit (Sch. Bob. 90 SraNGt). As Valerius Maximus says (8.1 abs. 4), Claudius . . . imbris beneficio tutus fuit a damnatione: discussa enim quaestione aliam velut dis interpellantibus de integro instaurari non placuit. He was, however, accused on another charge (actione mutata, Sch. Bob. loc. cit.), and heavily fined. No doubt, even the augurs must have been baffled by Jupiter’s decision to save Claudius. 10. The augurs were not only interested in discovering hidden vitia, An im- portant function of the college was to provide binding explanation of old augural documents concerning the ius publicum. Here belongs the decree mentioned by Festus 152L.: Maximum praetorem dici putant ali eum, qui maximt imperi sit; ali, quifa] aetatis maximae. Pro collegio quidem augurum decretum est, quod in salutis augurio praetores maiores et minores appellantur, non ad aetatem, sed ad vim imperil pertinere. The case of Cn. Fulvius Flaccus in 211 offers no immediate parallel for Fulvius was charged with fuga ex proelio (Liv. 26.2. 15, cf, 26.3.5; BRoucHTon, MRR 1.271 2. 2). Moen and Brecur share their misconception of Claudius’ trial with Polybius, who in full accordance with his rationalistic appraisal of Roman religious customs as only a sham did not bother to mention Claudius’ contemptuous attitude to the auspices, but immediately connected his trial with the catastrophe at Drepanum (1.52.23): 816 Kat perc ratte peydhars Enuiaas xad xevdtvors KoLOeLg meguénecey. Cf. F, WaLsank, A Historical Commentary on Polybius 1, Oxford 1957, ad loc. ‘The actual acquittal of Ciaudius took place in perfect accordance with the rule quoted by Cicero, de domo 25: quarta sit accusatio trinum nundinum prodicta die, quo die ixdicinm sit futurum ... si qua res illum diem aut auspiciis aut excusatione sustulit, tota causa indiciumque sublatum est. 1 think Momsen errs in his interpretation of this legal regulation for he again underrates the importance of the auspices, He relies heavily on information provided by Sch, Bob. (90 Sranos) and concerning the trial of Claudius: Postea (i.e. after vitium intercessit, see in the text) tr. pl. intercesserunt ne idem homines in eodem magistratu perduellionis bis eundem accusarent. In his ‘Rém. Strafrecht’ 588 n. 3 (ef. 170 n. 5) he writes: ,, Gesetz war dies wohl nicht; vermuthlich wurde nach Herkommen die zweite Klage in solchem Fall durch Intercession beseitigt. MoMMsEN’s interpretation has been generally accepted, even by the normally critical J. L. $rracrian-Davinson, Problems of the Roman Criminal Law 1, Oxford 1912, 154~156. But we certainly should not ump together auspicia and excusatio. As far as the latter is concerned it is quite possible that it was customarily backed by the tribunician intercession, and that it had finally hardened into a legal custom. But with respece to the auspices we must try to find an augural explanation. In his list of cases (Staatsrecht 3.357 a, 1) Mommsen omits Liv, 40.42.10 referring to a ixdicivm populi in 180: vitivm de caelo, quod comitia turbaret, intervenit. religio inde fuit .. . inaugurandi Dolabellae (for a discussion of this passage see below, an. 273~274), There is no talk here of a tribunician intercession; religio is stressed. The effect of an unfavourable oblative sign with respect to comitia legum and comitia magistratuum was merely a postponement of the meeting; the sign referred only to the day of the gathering and not to its substance. With respect to indicia populi we are told thee zoza causa... sublata est. Why this difference? The ixdicivm populi concerned a single person who was personally cited by a comicen (Varro, de ling. Lat. 6.9092). It is possible that his name was mentioned in the formula of the auspicatios in this case a vitium de caelo could well be interpreted as the sign of Jupiter’s disapproval of the ac- cusatio itself, 2178 J. LINDERSKE The praetores maiores et minores were obviously mentioned in the text of the precatio recited by the officiating augur at the augurinm salutis.¥ There must have arisen a dispute as to the precise meaning of the terms maior and minor, and the college explained that the meaning of these terms did not conform to the contemporary colloquial usage. The decree itself must therefore be relatively recent, but the text of the prdecatio undoubtedly goes back to the time when the third praetor was introduced, i.e. the terminus post quem is 366,13 It is rather strange that the college should have been called upon to decide a question of merely antiquarian interest. Few politicians would have been interested in this problem if the praetores maiores and minores were referred to in the augural formula only. It is therefore quite probable that the praetores maiores and minores, i.e. consuls and praetors, took an active part in the cere- mony. This would explain their interest in their archaic title, and the need for an authoritative augural pronouncement in this question. As I see it, the ceremony was at first inaugurated by the augurs, and then actually performed by the magistrates cum imperio. It is worth noting in this connection that two eminent augurs of the Ciceronian age, L. Iulivs Caesar (cos. 64) and M. Valerius Messala (cos. 53)*#4 discussed in their treatises on the auspices the constitutional and augural meaning of the terms maior and minor. We learn from Festus 154 L, that maiorem con- sulem L. Caesar putat dici vel eum, penes quem fasces sint, vel eum qui prior factus sit, Praetorem autem maiorem, Urbanum: minores ceteros. Two observa- tions. The statement that consul maior was possibly qui prior factus sit runs counter to the explanation given in the augural decree. Secondly, there was no difference as to the vis imperii between the consuls or between the praetors. If the decree dates from the Ciceronian period, L. Caesar must have been in the minority that voted against it. Perhaps the decree dates from a much earlier epoch, or perhaps the views of L. Caesar were thoroughly distorted along the tortuous way from his voluminous work through Verrius Flaccus to Festus,115 112 On the angurium salutis, see CATALANO, Diritto augurale 335-346. T. Kévus-Zuzavr, Reden und Schweigen: Rémische Religion bei Plinius Maior (Studia et Testimonia Antiqua 12), Miinchen 1972, 60 n. 150 (cf. 51 n. 111) misinterprets the decree mentioned by Festus as an example of commentatio containing ,ritvelles Sprechen“. But the decree itself did not constitute a formula; there were no words in it that could not be expressed in 2 different manner. It was only the precatio that did have a ritual and formulaic character. For a criticism of Kéves-Zuraur’s interpretation, see J. Linpersxt, Class. Phil. 70, 1975, 287. us Cf. F. A. Brause, Librorum de disciplina augurali reliquiae, Diss. Leipzig 1875, 11. His terminus post quem is the introduction of the second praetor which took place around 242 (Mommssn, Staatsrecht 2. 196). 114 See on them, F. Minzur, Iulius 143, RE 10, 1, 1918, 468-472; R. Hansurx, Valerius 268, RE 8A, 1, 1955, 166~169; E. Bicker, Lucius Caesar Cos. 64 in der Origo Gentis Romanae, Rhein, Mus, 100, 1957, 201-236. 195 Bur the situation may have been much mose complicated. J. Punsenr, Military Tribunes and Plebeian Consuls: the Fasti from 444 V to 342 V (Historia-Binzelschriften 24), Wiesbaden 1975, 25, thinks that L. Caesar “is likely to have been the source of this THE AUGURAL LAW 2179 On the other hand the views of Valerius Messala coincide perfectly with the opinion expressed in the decretwm. In his work he discussed the constitutional position of praetors as conlegae of consuls and quoted with approval the opinion of C. Sempronius Tuditanus (cos. 129) that imperium minus praetor, mains habet consul,6 This is precisely the distinction according to the vis imperii. In view of the widely divergent opinions propounded privately by disting- uished augural scholars there was clearly a necessity for an official declaration by the college as to the meaning of the terms praetor minor and praetor maior. 1 would surmise that the attempt to celebrate the angurium salutis in 63 ignited ruling”, but adduces no arguments. At the same time, however, he considers the possibii- ity that the ruling could be Augustan (p. 25 n. 28), and in this connection he quotes Cic. de rep. 2.55: Publicola . . . sibi collegam Sp. Lucretium subrogavit suosque ad cum quod erat maior natu lictores transire iussit (cf. Val. Max. 4.4,1), and esp. Gell. 2.15.4: sicut kapite VII legis Iuliae priori ex consulibus fasces sumendi potestas fit non qui pluris annos natus est sed gui pluris liberos quam collega aut in sua potestate habet aut bello amisit, This may suggest, Pinsent thinks, that “age had been the official criterion up to the lex Iulia. If so the ruling of the augurs was tendentious, and perhaps related to the theory that maximus praetor meant the dictator”. There are no grounds for this inter- pretation. We should not confound the philosophical and antiquarian doctrine which extolled the wisdom and privileges of old age (or seniority) with actual constitutional practice. L. R. Taytor and T. R. §. BroucHton have shown many years ago that the consul elected first was also first to hold the fasces, see their articles ‘The Order of the Two Consuls’ Names in the Yearly Lists’, Memoirs Amer. Acad. Rome 19, 1949, 3—14; Exp., The Order of the Consuls’ Names in Official Republican Lists, Historia 17, 1968, 166-172. Cf. also j. Linpersx1, Constitutional Aspects of the Consular Elections in 59B.C., Historia 14, 1965, 423~442, and see now the excellent analysis by R. RiLiNGER, Der Einfluss des Wahlleiters bei den rémischen Konsulwahlen von 366 bis $0 v.Chr. (Vestigia 24), Miinchen 1976, 40-59, ‘The interpretation of L. Caesar may have been subtier than that contained in the decretum. He distinguished between two kinds of conswles maiores. On the one hand consul maior consul prior factus (but this distinction hardly implied any difference in the zis imperii), and on the other consul maior = the actual holder of the fasces. The holding of the fasces was connected with imperium, for only the actual holder of the fasces had the right to independent action, whereas the imperium and auspicium of his colleague were dormant at that time (however, it is important to realize that in any case the auspicium was dormant only as far as independent action was concerned, and not obstruction). A. Macpetam, Praetor Maximus et Comitiatus Maximus, Tura 20, 1969, 257286, esp. 274-279, persuasively argues that the consul who had the fasces was originally called praetor maximus (maximus = sovereign), and that one of his obligations was to drive the annual nail into the wall of the Capitoline temple on the Ides of September. J. PyNseNT, op.cit. 24~27, ingeniously connects the ceremony of the fixing of the clavus annalis with the augurinm salutis, which has some interesting implications for the history of the year 63. See also A. Momicuiano, Praetor Maximus e questioni affini, in: Quarto con- tributo alla storia degli studi classici e del mondo antico, Roma 1969, 403—417 (originally published in: Studi in onore di G. Grosso 1, Torino 1968, 161-175), who gives a lucid exposition of four possible interpretations of the expression praetor maximus (see esp pp. 411-413). 46 Geli. 13.15.4. 138 ANRW 16.3 2180 J. LINDERSKI Jearned discussions concerning these terms, and that the praetor maior M. Cicero turned to the college for a binding pronouncement in this question,” 11, Historically the most important function of the college was to pass decrees concerning religio, a ritual obstacle or ritual pollution.1#° Those decrees are only very infrequently mentioned in our sources, although it is obvious that at every point when a constitutional innovation was made, the college was obliged to remove the religio. Historians quite understandably preferred to narrate dramatic social and political struggles than pay attention to dry decrees that provided little scope for excogitating fiery orations. ‘We should therefore be thankful to Livy for having provided us with at least one specimen of such a decree, Liv. 4.31.4 (referring to 426): Maesta civitas fuit vinci insueta; odisse tribunos (i.e. the consular tribunes), poscere dictatorem: in eo verti spes civitatis. Et cum ibi quoque religio obstaret ne non posset nisi ab consule dici dictator, augures consulti eam religionem exemere. ‘Thus according to the annalists the question arose in 426 whether a consular tribune was ritually qualified to name a dictator. Oci.vis is of the opinion that the tribuni militum consulari potestate did not have the auspices!" (this view ultimately derives from the theory elaborated by R. Laqueur’”? whom Ociivie does not quote), and hence were not able to appoint a dictator or celebrate a triumph, Now whatever the reason for the consular tribunes’ inability to celebrate a triumph, this fact cannot be taken as proof that they lacked the auspices. They were elected auspicato at the comitia centuriata, and they in turn presided over elections of consuls, and to do this they must have been in 17 CE, Cie, de div. 1.105: Tibi App. Claudius augur consuli nuatiavit (a technical expression denoting an official communication) addubitato salutis augurio bellum domesticum triste ac turbulentum fore. From this passage it seems to follow that Cicero in his ritual capacity as praetor maior (or perhaps praetor maximus: he was elected ahead of C. Antonius) ‘was to perform the actual ceremony. The etymology of religio is a notoriously vexed question. H. Wacenvoont, Wesensziige altrmischer Religion, in: ANRW I 2, Berlin-New York 1972, 351, says that ,,wenigstens der Durchschnittsrimer das Wort ‘religio’ als Gebundenheit und als von ‘religare’ ber- geleitet betrachtet hat‘. But he does not take into account numerous instances in which religio clearly meant (also to an average Roman) ‘obstacle’, ‘pollution’, “Bedenklichkeie’, “Scheu, cf. e.g, Packarp, A Concordance to Livy, s.v. The most importane recent study of religio is the article by A. K. Mrcuts, The Versatility of religio, in: The Mediterranean World. Papers presented in honour of Gilbert Bagnani, Peterborough (Ontario) 1975, 36-77. She comes to the conclusion that there are two important elements in the character of religio, and that these elements are in some way related to each other: “First and most ‘obvious is the element of fear, from which result acts of worship in cult, and the prohibition of other acts. . . . A less obvious but very important element in religio is the sense of obligation” (pp. 73-74). a9 R, M, Oorviz, A Commentary on Livy, Books 1~5, Oxford 1965, 584. 320 R, Laqugun, Uber das Wesen des rémischen Triumphs, Hermes 44, 1909, 215-236. 121 For an attempt at an explanation, see Momastn, Staatsrecht 1.7126—128, 2.9190; H. 8. ‘Versnet, Triumphus, Leiden 1970, 186-189, 350-351, Cf. G. V. Summer, The Legion and the Centuriate Organization, Journ. Rom. Stud. 60, 1970, 71~72. u THE AUGURAL LAW 2181 possession of the auspices.12? So the real question is not whether they had the auspices at all, but rather what kind of auspices; were they in possession of the full consular auspicia or of the auspices of a lesser kind? VeRSNEL maintains that at elections it was rather the degree of imperium and not of auspicium that was of primary importance. % Consuls and praetors had the same kind of auspicium, and yet imperium minus praetor, mains habet consul, et a minore imperio maius aut maiovi conlega rogari inve non potest (Messala apud Gell. 13.15.10). It is, however, important to remember that the dictio dictatoris was not a rogatio, and secondly that the dictator had a more powerful imperium and auspicium than that of the consul." So in any case the dictator was appointed by a holder of a lesser imperium and auspicium, Nevertheless according to the augural-antiquarian tradition the opinion had prevailed till 426 that the auspices of the consular tribunes were not strong or solid enough (there were plebeians among the consular tribunes) to allow them to name a dictator, Religio can in this context only mean that it was believed that a dictator named by a consular tribune would be a vitiatus dictator, deprived of valid auspices, It would be interesting to know the arguments presented by the collegiwm, or rather by the antiquarians; it was certainly possible to argue that the consular tribunes were possessed of the full consular imperium and auspicivm, and so they were able to perform an auspically valid dictio. 126 But above ail we would like to have the augural decrees that must have been passed when the plebeians gained admission to the consulship and to the pontifical and augural college. Instead Livy offers us two speeches, one by Appius Claudius against the plebeian claims to the consulship, and the other by P. Decius Mus for the plebeian aspirations to the sacerdotia. However, in both orations the annalistic and antiquarian tradition had the speakers lay a special emphasis on one thing: the auspicia and the right to them. 127 The problem who was ritually qualified to be elected to an office or to appoint a dictator or preside over the comitia was by no means limited to the early republic, Sulla and Caesar were faced with a similar question, Cic. ad Att. 9.15.2 (of 25 March 49): volet enim (sc. Caesar), credo, senatus consultum facere, volet angurum decretum . . . vel ut consules roget praetor vel dictatarem dicat; quorum neutrum ins est. sed si Sulla potuit efficere ab interrege ut dictator diceretur et magister equitum,”® cur hic non possit? A few days earlier Cicero 122 Cf. Liv. $.52.16; MomMsEN, Staatsrecht 1.9217 n, 1, 2.3189; VeRSNEL, op.cit. 186-187. 123 Op, cit, 333-334. 124 According to VaxsNei, op.cit. 358 n, 2, it is questionable whether the dictator's auspicia were superior to those of the consul. Liv. 4.41.3 should dispel his doubis: consul auspicio dictatoris . . . res prospere gesserat. 128 Cf. Liv. 8.15.6: religio inde iniecta de dictatore et, cum augures vitio creatum videri dixissent, dictator magisterque equitum se magistratu abdicarent. 226 Cf. F, Sav, A proposito del carattere religioso del ‘dictator’, Studia Docum. Hist, et luris 42, 1976, 420-421. 127 Liv, 6.40—41, 10.7-8, 128 ‘The phrase et magister equitum is suspect for the master of the horse was always appointed by the dictator himself. It is missing in some codices and the editors often leave it 386 2182 J. LINDERSKI described the augural doctrine concerning this question in greazer detail, ad Att. 9.9.3 (of 17 March 49): nam permagni cius (i.e. Caesaris) interest rem ad interregnum non venire; id adsequitur si per practorem consules creantur. nos autem in libris habemus non modo consules a practore sed ne praetores quidem creari ins esse idque factum esse numquam; consiles eo non esse ins quod mains imperium a minore rogari non sit ius, praetores autem cum ita rogentur ut col- legae consulibus sint, quorum est maius imperium. Cicero intimates that the theory he expounds was enshrined in the ritual books of the augurs. This must be taken cum grano salis.'?° Cicero and Messala subscribed to the same doctrine, and yet Messala, who wrote extensively on the subject, was not able to find anything more authoritative as his source than the commentarii of C. Sempronius Tuditanus.° And it is quite characteristic that both Cicero and Messala stressed the authority of custom and tradition, Id factiim esse numquam, exclaims Cicero; ante haec tempora servatum est, says Messala. Tn fact there does not seem to be known any case of consular elections conducted by a praetor. Also Caesar recognized the strength of the argument, and he chose the legally and augurally least objectionable way, namely to be appointed dictator by a practor.™3? The procedure was carefully thought out. The praetor M. out. H. SjécreN, Ad Ciceronis Epistularum ad Atticum libros IX—XIJ adnotationes, in: Symbolae Philologicae ©. A. Danielsson dicatae, Upsaliae 1932, 330— 332, defends it, however, quoting two interesting parallels displaying the same breviloguentia et incuria sermonis, Liv. 8.17.3: Dictator ab consulibus (in fact only one consul performed the dictio) ex anctoritate senatns dictus P. Cornelins Rufins, magister equitum M. Antonis; Liv. 97.1213: expressum senatus consulto est, ut dictatorem dicerent (scil. consules) comitiorum causa. Q. Fabiam Ambustum diverunt et P. Aelinm Pastum magistrum equiturn, 129 Momasen, Staatsrecht 2.9126 n. 2, takes the libri to mean ,,die Auguralschriften, die Quellen auch fiir Tuditanus und Messala” ~ Messala, however, quotes only Tuditanus, see below n. 130. 430 Messala apud Gellium 13,15.4: Practor, etsi conlega consulis est, neque practorem neque consulem inure rogare potest, ut quidem nos a superioribus accepiznus astt ante haec tempora servatum est et ut in commentario tertio decimo C. Tuditani patet, quia imperium minus praetor, mains habet consul, et a minore imperio maius aut maiori (maiore codd., often ‘mended to maior a minore, but against this emendation see Mommsen’s illuminating remarks, Staatsrecht 2.3126 n. 2) conlega rogari inre non potest. To my knowledge the best paraphrase of this augural rule has been given by D. R. Stackneron Bar.ey, Cicero's Letters to Atticus 4, Cambridge 1968, 374, which I take the liberty of quoting in full: “The argument is that Praetors were both like and less than Consuls; and a magistrate who was like a Consul could not be ‘proposed’ by one who was less than a Consul”. C. Sempronius Tuditanus was consul in 129; it is quite possible that Cicero also derived his interpretation from the Hori magistratuum (for the title, cf. Macr. Sat. 1.13.21) of Tuditanus. Cf. Minzer, Sempronius 92, RE 2A, 1923, 1442. 121 One could argue that there had been a precedent for this procedure, Livy 22.8.5~6 says that in 217 quia et consul aberat, a quo uno (dictator) dici posse videbatur, nec per occupatam armis Punicis Italiam facile erat aut nuntinm aut litteras mitti, quod numqnarn ‘ante eam diem factum erat, dictatorem populus creavit Q. Fabium Maximum et magistrum equitum M. Minuciem Rufum. But already at 22.31,8~11 Livy has doubts about the possibility of the popular election of a dictator, and he surmises chat Fabius functioned ‘pro dictatore. Momsen, Staatsrecht 2.3147 n. 4, speaks in a rather puzzling way of the THE AUGURAL LAW 2183 Aemilius Lepidus passed a comitial law which empowered him to name a dictator, and on this basis he proceeded to the ceremony of dictio. Caesar records this clearly and with great terminological accuracy in his Commentaries: legem de dictatore latam seseque dictatorem dictum a M. Lepido praetore cognoscit.¥9? Sulla had adopted a similar procedure. The interrex L. Valerius Flaccus passed the law de dictatore creando, and then performed the dictio.1°3 A sur- prisingly great number of eminent scholars believe that Sulla was elected dictator by the centuriate assembly which convened under the presidency of the inter- rex.1%4 The sole basis for this belief is Appian, Bell. civ. 1.99 (461): ‘Paopaton & oby Exdvtes piv Ob68 Kate voyov EL yeLQotOVoivtEs OBSEV OS? Ext o@law Fyotpevoi td Egyov Shug, Ev 58 tf] mavtwv dmogig thy dKQLOW Tis XeLQoTO- vias @¢ thevbegiag eixdva Kal xQdoyyna coracauevor yergotovotat tov ZtAhav. Exactly as one would expect of him, Appian has failed to distinguish between the enabling legislation and the ceremonial dictio. 5 Of course one can prefer the story concocted by a late Greek author and discard the explicit testi-~ mony of a republican augur (wt dictator diceretur, Cic. ad Att. 9.15.2), but should we call this sound historical method? Two things which are often confused in modern literature must be kept "strictly apart, One is the comitial legislation. Both in the case of Sulla and that of Caesar one of its aims was to select a person for the performance of dictio. In this renuntiatio of the dictator by the praetor. I am not convinced by the ingenious but unduly complicated reconstruction of the case by G. V. Summer, Elections at Rome in 217 B.C., Phoenix 29, 1975, 250-259 (with further literature). For a criticism of Sumven’s inter- pretation, see E. $. Gruen, The Consular Elections for 216 B.C. and the Veracity of Livy, California Studies in Classical Antiquity 11, 1978, 61—74. 192 Caes. Bell. civ. 2.21.5. For other sources, see G. Roronni, Leges publicae populi Romani, Milano 1912 (repr. 1962), 414-415; Broucston, MRR 2.256-257, For a discussion of the case, see above all Momsen, Seaatsrecht 2.2704; U. Wincken, Zur Entwicklung der rémischen Diktatur (Abh. d. Preuss. Akad. d. Wiss. 1940, 1), Berlin 1940, 13~15; F. pz Marnwno, Storia della costituzione romana 3, Napoli 1958, 199~200; Jan, Interregnum. u. Wahidikeavur (above, n. 93), 181-186. 189 Cic. ad Att, 9.15.2 in conjunction with App. Bell. civ. 1.98—99. For this interpretation, see Mommsan, Staatsrecht 2.9704; Roronp1, Leges publicae (above, n, 132}, 348-349; Wricxen, op. cit. (above, n. 132) 8; Jann, Interregnum u. Wabldiktatur (above n. 93), 161-165; E. Gaspa, Appiani Bellorum civilium fiber primus?, Firenze 1967, 341. 138 So e.g. Brouciron, MRR 2.66; Dz MARTINO, op. cit. (above, n. 132), 72 (he thinigs that the dictatorship was conferred on Sulla directly by the Jaw proposed by Valerius Flaccus ~ constitutionally 2 most unusual and unlikely course of action); D. R. SHAcKLETON Batuey, Cicero’s Letters to Atticus 6 Cambridge 1968, 389, who accuses Cicero of gross inaccuracy, for, as he says without quoting any sources, “Sulla was elected Dictator in 82 by the Centuries”. The anti-Ciceronian stance of this Ciceronian scholar is quite impressive. 195 Cf. Sumer, op.cit. (above, 1. 131), 254 n, 15: “Te mast be admitted that it would be quite natural for Appian to describe the procedure in eerms appropriate to an election”. Appian has the people also elect Caesar as dictator (Bell. civ, 2.48); this information is on the same legal level as Plutarch’s assertion chat Sulla Suxtécwoa Wey yao Savtdv dv- ny6gevee (Sull. 33.1) or that Caesar was algebeig 88 Suctdawo Sad tig Boung (Caes. 37.1) or Eutropias’ statement Caesar... se dictatorem fecit (6.20.1). 2184 J. LINDERSKI way the popular assembly assumed the role which in earlier republican times was regularly exercised by the senate. The unusual thing about the lex Valeria and the lex Aemilia was that both laws chose for that function a person who could be regarded as ritually unqualified to perform it: an interrex and a praetor. A law could remove legal obstacles, but not religious doubts. Caesar and Sulla under- stood it well, much better than many of their modern biographers.1°° Volet auguram decretum, says Cicero, and he complains: rapiemur aut absentes vexa- bimur (ad Att, 9.15.2). Caesar no doubt got his decretum, and Cicero un- doubtedly voted that there was no religio involved in a praetor appointing a dictator. There is a straight line of augural development from the annalistic case of 426 to Sulla and Caesar. In all three cases the issue at stake was the appointment of a dictator by a holder of imperium who was not a consul. In all three cases the augurs decided that it could be done sine religione. Ancient and modern historians who accuse Sulla and Caesar of acting against leges and mos easily forget that formally neither of them was appointed dictator in contravention of law, human or divine.13’ The popular assembly took care of the former, and the augurs of the latter. And we have always to remember that the greatest violation of the augural law was the admission of the plebeians to the consulship and the priest" hoods. 12. Religio like vitium could apply to anything and everything. The two concepts are closely connected; disregard of religio results in vitivm. The augurs must have been as busy establishing or removing religio as they were establishing the occurrences of vitium. Two examples: Priscian has preserved for us a fragment of Livy from book 41.13° It reads as, follows: periti religionum iurisque publici, quando duo ordinarii consules eins anni, alter morbo, alter ferro perisset, suffectum consulem negabant recte comitia habere posse. The periti religionum iurisque publici will undoubtedly be the augurs,? and not the pontiffs as Jann has recently suggested." The dispute concerned 136 Few scholars quoted above pay attention to augural matters. This is also true of ancient authors; only because the augur Cicero was personally involved in the dispute regarding the ritual validity of Caesar’s dictatorship do we know of Caesar’s concern for a proper augural procedure, Sulla will have proceeded in a similar way. 337 CE. C, Casrexzo, Intorno alla legittimita della lex Valeria de Sulla dictatore, in: Studi P. De Francisci 3, Milano 1956, 37~60, who argues that the appointment of the dictator by an interrex could be reconciled with the flexibly understood mos maiorum (but of. Jann, op.cit, [above, n. 93], 164-165, for a criticism of CasrsiLo’s method of source ‘analysis). In connection with Casvetto’s article E. Bapian, From the Gracchi to Sulla (1940-1959), Historia 11, 1962, 230, judiciously remarks that “studies of this (prima facie) excessively scholastic kind are in fact of great value in the characterisation of the 138 Je is normally printed as Liv. 41.18.16. 139 This seems to be the common opinion, cf. WrisssNnorn and Méiee ad loc. 440 Op. cit, (above, n. 93), 150-152, THE AUGURAL LAW 2185 the validity of the anspicia of the suffect consul; there is no mention of the sacra or procurationes that would naturally be in the charge of the pontiffs, The passage refers to the situation which developed in 176 after the two ordinary consuls had died in rather unusual circumstances,"1 First of all the feriae Latinae were declared invalid for in una hostia magistratus Lanuvinus precatus non erat populo Romano Quiritium, and this fact religioni fuit.4? But it was only the beginning of calamities. Accesserat ad religionem, says Livy, that the consul Cn. Cornelius fell down on his way back to Rome from the Latin Festival, suffered serious injuries, and soon afterward died.143 The other consul, Q. Petilius, fell in batrle against the Ligurians after he had ignored a vitivm in auspicio (see above). The suffect consul C. Valerius Laevinus was elected under the presidency of Petilius. The augurs thought he was not qualified to conduct the elections. They may have reasoned in the following way. The calamitous demise of both consuls was a prodigy which could be taken as an indication that their auspices were not fully valid. This would mean that an undetected vitium had been committed at the election of Cornelius and Petilius. On this theory both the bizarre death of Cornelius and the erratic behaviour of Petilius would find a neat explanation. The deity protested against the vitiosi consules, But vitinm was like a contagious disease. Petilius had already transmitted his vitium to Valerius Laevinus, and now it was imperative to prevent it from being handed down to the succeeding pair of consuls. Valerius was not able to conduct the elections in a right way, recte. Recte is a known augural term; its opposite is vitio, The periti religionum tried to establish a particular case of religio. Because of a suspicion of vitivm it was religio for the suffect consul to function as the vogator comitiorum. The only way to solve this situation was to bring about the abdication of the consul, and to proceed to the renovatio auspiciorum through an interregnum.*** Unfortunately there is a gap in Livy, and as there is no notice of an interregnum in the Fasti Capitolini, the question must be left open if the views of the periti religionum prevailed in 176, But we may be certain that whenever religio was linked with auspicia the augurs will have played a decisive role in ex- cogitating an ingenious solution, Mt Liv, 41, 16~18. ™2 A prodigium at the celebration of the Feriae Latinae was a serious matter. When C. Hostilius Mancinus, cos. 137, auspicated in Lavinium pulli e cavea in siluam Laurentinam evolarunt (a technical word) neque inventi sunt (Obsequens 24; Liv. Per, 55; Val. Max. 1.6.7). This portended Mancinus’ ignominious defeat at Numantia and his disgrace. 49 Cf. F, B, Krauss, An Interpretation of the Omens, Portents, and Prodigies Recorded by Livy, Tacitus, and Suetonius, Diss, Philadelphia 1930, 174~175. 46 If one is in need of parallel passages that would bear out this kind of reasoning, here are two of them: Liv. 5.17.2-3: nihil profecto alind esse quam magistratus vitio creatos Latinas sacrumque in Albano monte non rite concepisse {exactly as in 176); unam ex- piationem corum esse ut tribuni militum abdicarent se magistratn, auspicia de integro repeterentur et interregnum iniretur; 8, 17.4: religio deinde incessit vitio eos creatos (refers to a dictator and his master of the horse) magistratuque se abdicaverunt; et quia pestilentia insecuta est, velut omnibus eo vitio contactis auspiciis res ad interregnum rediit. 2186 J. LINDERSKI "The augurs could establish religio and they could remove it. Prudent pol- iticians always tried t0 secure the cooperation of the college. Seemingly not so the censors of 89, P. Licinius Crassus and L. Iulius Caesar. We read in Festus 366 L.: Referri diem prodictam, id est anteferri, religiosum est, ut ait Veranius in £0, qui est auspiciorum de comitiis: idque exemplo comprobat L. Tuli et P. Licini censorum, qui id fecerint sine ullo decreto augurum, et ob id lustrum parum felix fuerit. Cicero in his speech ‘Pro Archia’ remarks that Iulio et Crasso nullam populi partem esse censam} at the same time according to the Fasti of Antium the censors did found the Lustrum.45 We owe to P, WiskMan an illuminating discussion of the riddle posed by the census of 89. His lucid exposition deserves to be re- produced in full: “the antiquarian Veranius . . . says that the lustrum of 89 was “parum felix’, because of the censors’ failure to observe a point of augural law. Secondly, censors were elected again three years later, in 86; the abandonment of the traditional gainguennium — with which the word ‘lustrum” had long been synonymous - strongly suggests that the previous lustrum was unsatisfactory. Te may even have been so infelix as not to count” #6 Wiseman is right. The lustram of 89 did not count. To prove it we have to attend now for a while to the point of augural law which the censors failed to observe, and which Wiseman omitted to discuss. "The antiquarian Veranius, who lived in late republican or Augustan times, wrote a number of libri on auspicia and pontifical law.147 Verrius Flaccus (Festus) used him in a number of his entries. Veranius seems to have been especially interested in the meaning of pontifical and augural words; he composed a treatise “De verbis pontificalibus’, and Festus quotes him to explain in which sense the libri augurales employed the term palsdati.'48 The terminology be uses in the passage under discussion is revealing. First of all the phrase religioswm est. We have to distinguish between religiosum esse, referring to an action, and religiosum esse referring to a res. In the former both the pontiffs and the augurs were interested; in the latter mainly the pontiffs, C. Aclius Gallus, a inrispradens and antiquarian, of whom we know only that he flourished before Verrius Flaccus, gives the following definition of religiosum, Fest. 348 L.: [Religiosum ait]? esse Gallus Aelius, quod homini ita facere non liceat, ut si id faciat, contra deorum voluntatem videatir facere. Quo in genere sunt haec: in aedem Bonae deae virum introire; adversus anspicia’° 48 Cie, pro Archia 11; Degrassi, Inser. It. 13.1, 164-166. 446 P, Wiseman, The Census in the First Century B.C., Journ. Rom. Stud. 59, 1969, 63-64. 467 A.B. Gorvon, Veranius i, RE 8A, 1, 1955, 937-938. For a collection of his fragments, see F. P, Bremer, Iurisprudentiae Antehadrianae quae supersunt If 1, Leipzig 1898, 5-9. us Macr. Sat. 3.20.25 Fest, 298 L. 9 So Linpsay in his edition of Festus in Glossaria Latina 4.382; in his Teubner edition he marks the phrase as corrupt. 199 One can only wonder why Linnsay did not accept this obvious emendation made by Ant. Aucustivus, and prints in his Teubner text the nonsensical mysticiae, In his ‘Gloss. Lat,’ mysticilafe] remains the main reading, but axspicia also appears in the text, in a parenthesis and with the mark of interrogation. | | THE AUGURAL LAW 2187 legem ad populum ferre; die nefasto apud praetorem lege agere (in the second part of his definition he treats of the res sacrae, sanctae and religiosae). If we juxtapose Veranius and Aelius Gallus, we shall see at once that referri (anteferri) diem prodictam must have had the same effect as legem adversus auspicia ferre. ‘And as we know from our preceding discussion, the leges contra (adversus) auspicia latae were ritually at fault but legally valid until they were declared vitio latae by the augural college and annulled by the senate, The censors proclaimed the date of the ceremony of lustrum in advance. Once they had issued their edict, all days preceding the fixed date were ritually unsuitable for the purpose of lustrum. From the point of view of this ceremony they were transformed into dies religiosi, or as they were also called, dies vitiosi.8? The lastrum performed on such a day was a vitiosum lustrum. 451 Following Wissowa (Religion a. Kulnus? 443~445), I was originally inclined to identify dies religiosi with dies vitiosi, but Professor A. K. Micnets has kindly advised me (in a letter) that this identification is not tenable, What was then the relationship between vitivm and religio with respect to the character of a day? First of all we have to keep in mind that the ominous character of a day (religiosi dies = tristi omine infames inpeditique, Gell, 4.9.5; for tvistis as an augural word, see below, n, 351, and for impedio in an augural context, see Cic. de leg. 3.27, de div, 2.77, Phil. 2.80, and below, p, 2205) and its calendar character, was not one and the same hing. For instance, the three days on which the mundus was open (August 24, October 5, November 8) were dies religiosi, and Festus (144/146, Paulus 145/147 L.) informs us that the Romans nihil eo tempore in republica geri voluerunt. Itague per eos dies non cum hoste manus conserebant, non ex- ercitus scribebatur, non comitia habebantur, non alind quicquam in republica, nisi quod ultima necessitas admonebat, administrabatur. Ax the same time the three days in question were marked in the inscriptional Fasti as c(omitiales), as was also the dies Alliensis (18 July). In general, on the dies religiosi no state or private business might be transacted, and on the dies airi also the conduct of the state cult was 0 be avoided (for evidence, and an illuminating discussion, see A. K. Micwezs, The Calendar of the Roman Republic, Princeton 1967, 61-68; cf. also F, Bémzr, P. Ovidius Naso. Die Fasten 1, Heidelberg. 1957, 37~39). Religio implies, or results in, vitivm, and so, prima facie, any action undertaken on a dies religiosus ought to have been an actio vitiosa, tainted by religio. But a glance at the evidence assembled by Mrcuzs (see esp. pp. 63~-65) and Drcrasst (Fasti anni Numani et Juliani = Inscr. It. 13.2, Roma 1963, 388#f.) will show that this was not the case, Some public religious rives were (regularly) conducted on dies religiosi. This calls for explanation, or at least an attempt at explanation, Perhaps at the root of our terminol- ogical and conceptual difficulties lies the attempt of Roman antiquarians to form a general theory of dies religiosi, But it is a faulty procedure to construe a composite picture of an ‘ideal’ dies religiosus. As A. K, Micrizzs has poinved out in her book (p. 66), dies atri were a subclass of dies religiosi; BOMER (p. 37) distinguished between dies religiosi ex causa sacra and dies veligiosi ex eventu = dies atyi. The days on which the Salii ‘moved’ the shields were clearly less zeligiosi than those on which the mundus was open, The former seem to have been unlucky only ad iver, esp. for the beginning of milizary enterprises, and for concluding marriages (for evidence, see BOMER, p. 38). For all other activities they were not religiosi at all. March 1, for instance, could not be a dies religiosus for entering upon office or for the meetings of the senate. No day was vitiosus per se or absolutely vitiosus; if religiosus or ater, it was unsuitable for some strictly specified transactions or, we may pethaps say, it was ‘vitiated’ for them. Only one day, 14 January, is described in several Fasti as dies vitiosus ex senatus consultos as we learn from the Fasti Verulani (discovered in 1923, and hence unknown to Wissowa), it was the dies natalis of Antonius

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